“Adjudicating Authority” in Section 2(4) of CGST Act, 2017 has been defined as follows-
(4) “adjudicating authority” means any authority, appointed or authorised to pass any order or decision under this Act, but does not include the Central Board of Indirect Taxes and Customs, the Revisional Authority..;
There are two important things to observe here that
A) Definition of Adjudicating authority in CGST does not exclude “Commissioner”- Firstly, Unlike in SGST Act wherein definition of “adjudicating authority” excludes “Commissioner”, definition of adjudicating authority in CGST Act, 2017 does not do the same.
Therefore, there is no such bar that Commissioner Central Tax cannot be an adjudicating authority. Also, the judgement in M/s Radha Krishan Industries Versus State of Himachal Pradesh & Ors. is not applicable as in the given matter, question before the Hon’ble Court was for definition of Adjudicating authority in SGST Act.
B) Adjudicating authority includes any authority authorised to pass a decision-Secondly, definition of “adjudicating authority” means any authority, appointed or authorised to pass any order or decision under this Act. Commissioner is a proper officer and authorised to pass an order by virtue of Circular No. 3/3/2017 Dated 5th July 2017 in respect of Sub- section (7) of Section 67 and Proviso to Section 78 of CGST Act, 2017. Therefore, it is incorrect to say that Commissioner can never be an adjudicating authority in GST.
The next question is where does the appeal lies in such cases. Section 107 provides that” Any person aggrieved by any decision or order passed under this Act..by an adjudicating authority may appeal to such Appellate Authority..”. Now as discussed, Commissioner is an adjudicating authority in GST, the question is can an appeal against the order of Commissioner be filed in Section 107. Although no Statutory bar but then both being of the same rank seems to be a bar against hearing an appeal by the Commissioner Appeals against the order passed by Commissioner.
Can an appeal be field directly before the GSTAT. In this case, Section 112 seems to place a bar as it only allows appeals to be by “Any person aggrieved by an order passed against him under section 107 or section 108 of this Act..”. So beyond that appeals are not allowed. However, interestingly Rule 21(1) of GSTAT Procedural Rule, 2025 goes beyond Section 112 and provides for submitting “original order passed by the adjudicating authority in the case of an appeal against the original order passed by the adjudicating authority”. However, it is pretty evident that Rules cannot override the Statutory Provision.
Therefore, there seems to be a vacuum under Section 107 and 112 of CGST Act, 2017 for the orders passed by the Commissioner as “adjudicating authority.”
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