Constitution of GSTAT Prima Facie inconsistent with SC Ruling: Madras HC [Read Order]

A two-judge bench of the Madras High Court, while hearing a petition challenging the constitution of the Appellate Tribunal ( GSTAT ) under the Goods and Services Tax (GST) regime, noted that the provisions of Sections 109 and 110 of the Central Goods and Services Tax (CGST) Act 2017 are prima facie contrary to the Apex Court’s decision in Union of India vs. R.Gandhi.

The bench comprising Chief Justice Indira Banerjee and Justice P T Asha also directed to issue notice to the Central and State Governments, GST Council and the Attorney general of India in this regard.

“On hearing the learned counsel for the petitioner, prima facie it appears that the constitution of the Appellate Tribunal is contrary to the decision in Union of India vs. R.Gandhi, In such view of the matter, this Court feels it appropriate to issue notice to the respondents returnable in six weeks,” the bench said.

A petition filed by Advocate V Vasanthakumar has contended that Sections 109 and 110 of the Central Goods and Services Tax (CGST) Act 2017 are unconstitutional as the same are void, defective and unconstitutional, being violative of doctrines of separation of powers and independence of judiciary.

The provisions are relating to constitution of the AT and qualification, appointment and condition of services of its member. As per the petitioner, “…during the pre-GST regime, taxes were levied under separate laws namely Central Excise, Custom and Service tax had also the scheme of second appeal before the Appellate Tribunal known as Custom, Excise & Service Tax Appellate Tribunal (‘CESTAT’). Each bench of CESTAT consisted of two members, one Judicial Member and one Technical Member. “GST law provide for constitution of Appellate Tribunal.

The Appellate Tribunal is constituted under Section 109 of the CGST Act and Tamil Nadu GST Act and Section 110 of the CGST / TNGST Act, provides for qualification appointment, condition of services, etc., for President and members of the Appellate Tribunal.

According to the petitioner, the provision is contrary to the decision of the Supreme Court in Union of India v R. Gandhi wherein it was categorically enunciated that Bench of National Company Law Tribunal / National Company Law Appellate Tribunal should consist of one Judicial Member and one Technical Member or the Judicial Member should be equal or in majority in compare to the Technical Member and in no circumstances the number of Technical Member should be in majority compared to Judicial Members.