Gujarat High Court: The Court  heard a petition filed by two Chartered Accountants, challenging the constitutionality of the National and State/ Regional Goods and Services Tax (GST) Appellate Tribunals, which are to be established as per guidelines in Section 109 of the Central GST Act. It was argued by the petitioners that the section in question and the constitution of the Tribunals the section seeks to create infringe upon the independence of the judiciary and are hence unconstitutional.

Section 109 (3) of the CGST Act reads:

“The National Bench of the Appellate Tribunal shall be situated at New Delhi which shall be presided over by the President and shall consist of one Technical Member (Centre) and one Technical Member (State).”

The following sub-section makes a similar provision for regional Benches of the Tribunal. Further, Section 109 (11) of the same Act states:

“If the Members of the National Bench, Regional Benches, State Bench or Area Benches differ in opinion on any point or points, it shall be decided according to the opinion of the majority, if there is a majority, but if the Members are equally divided, they shall state the point or points on which they differ, and the case shall be referred by the President or as the case may be, State President for hearing on such point or points to one or more of the other Members of the National Bench, Regional Benches, State Bench or Area Benches and such point or points shall be decided according to the opinion.”

It was the contention of the petitioners that owing to the majority rule for taking decisions, and the outnumbering of the judicial member by the technical members at all levels, is an attempt to encroach upon the judiciary’s domain, and hence the section be declared ultra vires Articles 13, 14, 19, and 50 of the Constitution and hence void. The petition made reference to the case of Union of India v. R. Gandhi, (2010) 11 SCC 1), where a 5-Judge Bench of the Apex Court held,

“Two member Benches of the Tribunal should always have a Judicial Member. Whenever any larger or special benches are constituted, the number of Technical Members shall not exceed the Judicial Members.”

This was a departure from the constitution of the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), which, before the introduction of GST, served as an appellate authority in matters relating to indirect taxes. The CESTAT consisted of one judicial and one technical member each. The petitioners also brought to the Court’s notice that over ten months have passed since the implementation of the GST regime but no such Appellate Tribunals had been constituted yet. To this effect, the Court issued a notice to the Union Government, Gujarat Government, and the GST Council. [Pratik Satayanarayan Gattani v. Union of India, 2018 SCC OnLine Guj 922, order dated 05-05-2018]

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