Part O.9 — What the Rules do not answer

O.8 The decision tree

Rules 16, 42, 43 and 47 are drafted separately and present together. On the morning of a hearing the question is never "what does r.42 say" — it is "my client cannot attend, what happens". This is that question, answered once.

                     THE MATTER IS LISTED FOR HEARING
                                  |
              +-------------------+--------------------+
              |                                        |
     WILL THE BENCH SIT?                        BENCH WILL SIT
              |                                        |
        NO / SITTING CANCELLED                         |
              |                                        |
   r.39(1) Tribunal not functioning ->                 |
           new daily cause list                        |
   r.39(2) a Member unable to sit ->                   |
           REGISTRAR adjourns to a convenient date     |
   r.39(3) notified on the notice board and            |
           the GSTAT Portal                            |
              |                                        |
   No application by you. No terms. No party           |
   in default. NOT an adjournment "granted to          |
   a party" for s.113(2) - do not let it be            |
   counted against your three (check r.54, r.55)       |
                                                       |
                    +----------------------------------+
                    |
          CAN YOUR SIDE ATTEND?
                    |
        +-----------+------------+
        |                        |
       YES                      NO
        |                        |
   ATTEND. If the               SEEK AN ADJOURNMENT
   OTHER side is absent:              |
        |                    r.16  - apply to the CONCERNED BENCH.
   YOU are the appellant             Only in extraordinary circumstances,
   and the RESPONDENT is             and only if the Tribunal in chambers
   absent -> r.43: the               so directs, may the Registrar act
   Tribunal MAY hear and             |
   decide the appeal EX PARTE   r.47  - the power itself: at any stage,
        |                             on such terms as the Bench thinks fit
   Ask for it. Be ready to            |
   prove service (r.40) -        s.113(2) - THE CONDITIONS THE RULES OMIT:
   an ex parte order on              sufficient cause shown; REASONS
   defective service is the          RECORDED IN WRITING; and NOT MORE
   first thing set aside             THAN THREE TIMES TO A PARTY
                                          |
                                   Is this the party's 4th?
                                          |
                              +-----------+-----------+
                              |                       |
                            YES                      NO
                              |                       |
                    NO POWER TO GRANT.          Apply early, by affidavit
                    The submission is           (rr.78-83). Expect TERMS
                    jurisdictional, not         under r.47: costs (r.102,
                    discretionary               r.120(1)), a peremptory
                              |                 listing, or "last chance"
                              |                       |
                    ATTEND ANYWAY - see below   -> If ALLOWED: verify the new
                                                   date in the order sheet
                                                   (r.54) and the diary
                                                   (r.55(2)); do not rely on
                                                   what was said from the chair
                                                       |
                                                -> If REFUSED or UNDECIDED:
                                                   YOU MUST STILL APPEAR
                                                       |
                                        +--------------+
                                        |
                              APPELLANT DOES NOT APPEAR
                              WHEN THE APPEAL IS CALLED
                                        |
                                   r.42 - the Tribunal MAY, in its
                                   discretion, EITHER
                                        |
                          +-------------+--------------+
                          |                            |
              DISMISS FOR DEFAULT            HEAR AND DECIDE ON MERITS
                          |                            |
              Proviso to r.42:                Nothing to restore. The
              on appearing later and          appeal is over on the
              satisfying the Tribunal         merits, and the route is
              of SUFFICIENT CAUSE for         s.117 / s.118, or
              the non-appearance, the         rectification under
              Tribunal "SHALL make an         r.108(2) / s.113(3)
              order setting aside the         within the window
              dismissal and RESTORE
              the appeal"
                          |
              Restoration is sought by
              application in GSTAT FORM-01
              under r.29 (head: direction),
              with an affidavit, on the Portal.
              FEE: CGST r.110(5), the APPEAL
              scale ("appeal OR restoration of
              appeal") - Rs.1,000 per Rs.1 lakh,
              max 25,000, min 5,000. NOT the
              Rs.5,000 of Schedule item 2
                          |
              -- NO fresh pre-deposit: the
                 s.112(8) deposit made at
                 institution continues to answer
              -- Limitation under s.112(1) is NOT
                 back in issue: the appeal was
                 instituted in time and has never
                 ceased to exist
              -- ASK EXPRESSLY for restoration to
                 the ORIGINAL NUMBER

O.8.1 The seven points the tree is built on

1. "Shall", not "may", on restoration. The proviso to r.42 says that where sufficient cause for non-appearance is shown, the Tribunal shall set aside the dismissal and restore. The discretion is in the finding of sufficient cause, not in the consequence.

2. Rule 42 gives the Tribunal a choice, and the choice matters enormously. Dismissal for default is curable under the proviso. A decision on the merits in the appellant's absence is not — there is no restoration route, only appeal or rectification. An appellant who cannot attend should therefore prefer, and if necessary ask for, a dismissal for default over a merits disposal in absence.