2018 (8) TMI 1140 – MADRAS HIGH COURT – 2018 (18) G. S. T. L. 224 (Mad.) – Constituting Appellate Tribunal under GST – Doctrine of separation of powers and independence of judiciary – Vires of Sections 109 and 110 of the Central Goods and Service Tax Act, 2017 – Held that:- Since the vires of Sections 109 and 110 of the Central Goods and Service Tax Act, 2017 and Tamil Nadu Goods and Service Tax Act, 2017, constituting Appellate Tribunal and the qualification, appointment and condition of services of its members is under challenge, notice be also issued to the learned Attorney General of India, through the Additional Solicitor General of India returnable six weeks hence. – W.P. No.14919 of 2018 and W.M.P. Nos.17635 and 17636 of 2018 Dated:- 6-8-2018 – P.T. ASHA, AND ABDUL QUDDHOSE, JJ. Petitioners Adv: V. Vasanthakumar P-In-P Respondent's Adv: Venkataswamy Babu (Order of the Court was made by Ms. Indira Banerjee, Chief Justice) This writ petition has been filed by a practising ad
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members, one Judicial Member and one Technical Member. It is stated that the CESTAT functions as an independent quasi judicial body and is deemed to be a Civil Court for the purpose of Section 195 of the Code of Criminal Procedure, 1973. 4. As per the Constitution of the Tribunal, the President, Vice President, Registrar and members of the Bench would carry on the day-to-day functions of CESTAT. Appointment and qualifications for the recruitment of President, Vice President and Members is governed by CESTAT Members (Recruitment and Conditions of Service) Rules, 1987. For appointment as a judicial member, the qualification would be that he/she has held a judicial office in the territory of India for at least for 10 years or he/she has been a member of Indian Legal Service and has held a 1st grade post in that service or any equivalent or higher post for at least three years. On the other hand, he/she has been an advocate for at least 10 years. The President, Vice President and members
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, the provisions relating to the constitution of GST Appellate Tribunal are contained in Sections 109 to 116 of the CGST Act and as per Section 109 (9) of the CGST Act, each State Bench and Area Benches of the Appellate Tribunal shall consist of a Judicial Member, one Technical Member (Centre) and one Technical Member (State) and the State Government may designate the senior most Judicial Member in a State as the State President, and the said constitution is contrary to the law enunciated by the Hon'ble Supreme Court in Union of India vs. R. Gandhi, supra, wherein it has been held that the number of technical members should not exceed the judicial members. 7. Mr. Vasanthakumar submitted that it is necessary that those who are called upon to discharge judicial or quasi-judicial powers should have legal expertise, judicial experience and legal training and therefore, in the Bench of Appellate Tribunal, the number of Technical Members should not and cannot be more than the number of j
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al Benches as may be required and such Regional Benches shall consist of a Judicial Member, one Technical Member (Centre) and one Technical Member (State) 10. It is submitted by Mr. Vasanthakumar that at the National Bench, the President has to be a retired Judge of the Supreme Court or a retired Chief Justice of High Court or Judge of High Court for not less than five years. However, he will be in a minority with two technical members who form part of the three-member Bench. Similarly, all the Regional Benches will also have judicial members in a minority. The technical members are Revenue Officers from the Centre and State. 11. Mr. Vasanthakumar relied upon the following decisions to buttress his submissions: (a) Union of India vs. R. Gandhi, reported in (2010) 11 SCC 1; (b) Kesavananda Bharati vs. State of Kerala [(1973) 4 SCC 225] 12. According to Mr. Vasanthakumar, the provisions of the GST Act, deprive the equality of opportunity to practising Advocates, who are endowed with the
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