CGST Section 109: Constitution of Appellate Tribunal and Benches thereof

Provisions under Section 109 of the CGST Act 2017 relating to “Constitution of Appellate Tribunal and Benches thereof”:

Section 109: Constitution of Appellate Tribunal and Benches thereof (CHAPTER XVIII: APPEALS AND REVISION) [*1&4]

(1) The Government shall, on the recommendations of the Council, by notification, establish with effect from such date as may be specified therein, an Appellate Tribunal known as the Goods and Services Tax Appellate Tribunal for hearing appeals against the orders passed by the Appellate Authority or the Revisional Authority, or for conducting an examination or adjudicating the cases referred to in sub-section (2) of section 171, if so notified under the said section [*5(a)].

(2) The jurisdiction, powers and authority conferred on the Appellate Tribunal shall be exercised by the Principal Bench and the State Benches constituted under sub-section (3) and sub-section (4).

(3) The Government shall, by notification, constitute a Principal Bench of the Appellate Tribunal at New Delhi which shall consist of the President, a Judicial Member, a Technical Member (Centre) and a Technical Member (State).

(4) On the request of the State, the Government may, by notification, constitute such number of State Benches at such places and with such jurisdiction as may be recommended by the Council, which shall consist of two Judicial Members, a Technical Member (Centre) and a Technical Member (State).

(5) The Principal Bench and the State Bench shall hear appeals against the orders passed by the Appellate Authority or the Revisional Authority:

Provided that the cases in which any one of the issues involved relates to the place of supply, shall be heard only by the Principal Bench.

Provided further that the matters referred to in sub-section (2) of section 171 shall be examined or adjudicated only by the Principal Bench: [*5(b)]

Provided also that the Government may, on the recommendations of the Council, notify other cases or class of cases which shall be heard only by the Principal Bench. [*5(b)]

(6) Subject to the provisions of sub-section (5), the President [*5(c)] shall, from time to time, by a general or special order, distribute the business of the Appellate Tribunal among the Benches and may transfer cases from one Bench to another.

(7) The senior-most Judicial Member within the State Benches, as may be notified, shall act as the Vice-President for such State Benches and shall exercise such powers of the President as may be prescribed, but for all other purposes be considered as a Member.

(8) Appeals, where the tax or input tax credit involved or the amount of fine, fee or penalty determined in any order appealed against, does not exceed fifty lakh rupees and which does not involve any question of law may, with the approval of the President, and subject to such conditions as may be prescribed on the recommendations of the Council, be heard by a single Member, and in all other cases, shall be heard together by one Judicial Member and one Technical Member.

(9) If, after hearing the case, the Members differ in their opinion on any point or points, such Member shall state the point or points on which they differ, and the President shall refer such case for hearing,-

(a) where the appeal was originally heard by Members of a State Bench, to another Member of a State Bench within the State or, where no such other State Bench is available within the State, to a Member of a State Bench in another State;

(b) where the appeal was originally heard by Members of the Principal Bench, to another Member from the Principal Bench or, where no such other Member is available, to a Member of any State Bench, and such point or points shall be decided according to the majority opinion including the opinion of the Members who first heard the case.

(10) The Government may, in consultation with the President, for the administrative efficiency, transfer Members from one Bench to another Bench:

Provided that a Technical Member (State) of a State Bench may be transferred to a State Bench only of the same State in which he was originally appointed, in consultation with the State Government.

(11) No act or proceedings of the Appellate Tribunal shall be questioned or shall be invalid merely on the ground of the existence of any vacancy or defect in the constitution of the Appellate Tribunal.”

Notes (History of Amendments in Bare Text):

1. CGST Section 109 introduced vide GOI Notification dated 12/04/2017, followed with CBEC Notification 9/2017 on commencement date of 01/07/2017.

2. Amendments vide Section 2 of the CGST (Extension to J&K) Act 2017 dated 24/08/2017, w.e.f. 08/07/2017:

(a) in sub-section (6), the text “except for the State of Jammu and Kashmir” inserted after the text “each State or Union territory”. [*4]

(b) first proviso to sub-section (6) inserted. [*4]

3. Amendments vide section 125 of the Finance Act 2020, followed with Notification 49/2020 on commencement date of 30/06/2020:

(a) in sub-section (6), the text “except for the State of Jammu and Kashmir” omitted. [*4]

(b) the first proviso omitted. [*4]

4. Section 109 substituted vide section 149 of the Finance Act, 2023, followed with Notification 28/2023 on commencement date of 01/08/2023. Please refer GOI Notification dated 12/04/2017 for text thereof before substitution, except for sub-section (6) which was amended after said notification but before substitution:

“(6) The Government shall, by notification, specify for each State or Union territory, a Bench of the Appellate Tribunal (hereafter in this Chapter, referred to as “State Bench”) for exercising the powers of the Appellate Tribunal within the concerned State or Union territory [*2(a)&3(a)].

[*2(b)&3(b)]

Provided [*2(b)&3(b)] that the Government shall, on receipt of a request from any State Government, constitute such number of Area Benches in that State, as may be recommended by the Council:

Provided further [*2(b)&3(b)] that the Government may, on receipt of a request from any State, or on its own motion for a Union territory, notify the Appellate Tribunal in a State to act as the Appellate Tribunal for any other State or Union territory, as may be recommended by the Council, subject to such terms and conditions as may be prescribed.”

5. Amendments vide Section 142 of the Finance Act (No. 2) 2024, followed with Notification 17/2024 on commencement date of 27/09/2024:

(a) in sub-section (1), the text “, or for conducting an examination or adjudicating the cases referred to in sub-section (2) of section 171, if so notified under the said section” inserted after the text “Revisional Authority”;

(b) second & third proviso inserted in sub-section (5); and

(c) in sub-section (6), the text “The President” substituted with the text “Subject to the provisions of sub-section (5), the President”.