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Advocate V Vasanthakumar has moved to the Madras High Court, and filed the petition praying that Sections 109 and 110 of the Central Goods and Services Tax (CGST) Act, 2017 relating to constitution of the appellate tribunal (AT) and qualification, appointment and condition of services of its member be declared ultra vires of Articles 13, 14, 19 and 50 of the Constitution of India claiming the same to be void, defective and unconstitutional, to be violative of doctrines of separation of powers and independence of judiciary”.
The petitioner has drawn comparison between the pre- and post-GST structure of the benches. During the pre-GST regime, not only the taxes were levied under separate laws, but also had the provision of second appeal before the Appellate Tribunal known as Custom, Excise & Service Tax Appellate Tribunal (‘CESTAT’).
While the GST law provide for constitution of Appellate Tribunal. The Appeal filed in the Tribunal is the second level of appeal, where appeals can be filed against the orders passed by the Appellate Authority or order in revision passed by revisional authority.
The petitioner has also argued that, the “Coram” of the Appellate Tribunal consists of One Judicial Member and two Technical Members whereby the constitution of Appellate Tribunal is “coram non judice”, while seeking stay on the operation of sections 109 and 110.
It is important to note that a similar petition challenging the constitution of Authority of Advance Ruling and the Appellate Authority of Advance Ruling under the Central Goods and Services Tax sans any judicial member is pending before the Gujarat High Court.
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