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APPEALS UNDER SERVICE TAX
APPEALS UNDER SERVICE TAX Provision of Appeal is an important legal remedy of our legal system. It has been provided to every person, who aggrieved from any judicial /quasi-judicial order, passed in relation to him. Such person can sought for remedy by way of filling appeal before suitable forum. The right to appeal is a conditional right and subject to fulfill such conditions, imposed by concerned act or law. In this article we will discuss the appeal provision and conditions under Service tax law. Any person aggrieved from any adjudication order passed under section 84 may prefer an appeal under section 85, 86 of Finance Act 1994. Under section 83 of Finance Act 1994, some sections of Central Excise Act 1944 are also applicable to the service tax. We will also discuss herewith these sections. Any person is aggrieved by the order of Assistant/Deputy Commissioner, Joint Commissioner and Additional Commissioner, passed under Section 71, Section 72 or Section 73 or denying his liability to be assessed or by an order levying interest or penalty or any order denying refund claim, may appeal to the Commissioner of Central Excise (Appeals) under Section 85. Such appeal can be filed within three month from the date of receipt of the decision or order. On sufficient cause, Commissioner of Central Excise (Appeals) can further extended for three months. Appeal to the Commissioner of Central Excise (Appeal) should be filed in prescribed form (FORM ST-4) in duplicate along with a copy of order appealed against. A person aggrieved by an order passed by Commissioner central excise or Commissioner (Appeals) central excise under Section 84 or Section 85 he may appeal to the Appellate Tribunal. Such appeal shall be filed in prescribed form (ST-5) in quadruplicate, under Section 86 of Finance Act 1994,. Such appeal shall be filed within a period of three months from the date on which the order impugned is received. The respondent on receipt of a notice that an appeal against the order of the Commissioner has been filed, shall file a memorandum of cross objection in form ST-6, within a period of 45 days from the date of receipt of notice. As per Rule 8 of the CESTAT (Procedure) Rules 1982, each appeal or cross-objection or other application should set forth concisely and under distinct heads, the grounds of appeal and such grounds shall be properly numbered. It shall be neatly typed in double spacing on the foolscap paper and the same shall be duly paged, index and tagged firmly with in each paper book. Documents shall be signed by appellant / respondent or the principle officer duly authorized to sign the same. The appellant / respondent or consultant or advocate retained by them shall certify as the true documents produced before the tribunal. Every appeal to CESTAT should accompanied fee. If such case involved demand upto Rs. 5,00,000/- fee should enclosed Rs. 1000/-, If such case involved demand more than 5,00,000/- but not more than Rs. 50,00,000/- fee should enclosed Rs. 5,000/- and If such case involved demand more than Rs. 50,00,000/- fee should enclosed Rs. 10,000/-. But fee not required in appeals filed by the Commissioner service tax/ central excise as the case. Further any application like Stay application, Condonation of delay application, miscellaneous application etc. should also filed in quadruplicate along with a fee of Rs. 500/-. Each appeal/ application should enclose their fee in form of demand draft as fee of the case, issued by any bank in favor of “Assistant Registrar, CESTAT, East Zonal Bench, Kolkata. Further on condition has been provided under section 35F of central excise 1944. it has been provided that every person desires to file an appeal against any order, shall pending the appeal, deposit with the adjudicating authority the tax levied or penalty imposed or both as the caser may be. Further it is also provided that if Commissioner central excise (Appeal) or CESTAT, as the case may be, may dispense with such deposit, subject to condition as he or it may deems fit to impose so as to safeguard the interest of revenue. The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections even after the expiry of the relevant period, after satisfaction, regarding sufficient cause shown for not presenting the appeal / application, within that period. Any person aggrieved from any order passed by CESTAT, can file an appeal under section 35G. Central Excise Act 1944, read with section 83 of Finance act 1994, Appeal to High Court (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise / service tax or to the value of the services for purposes of assessment), if the High Court is satisfied that the case involves a substantial question of law. Any appeal under this section shall be filed in Form EA-6 within one hundred and eighty days from the date on which such person receives the order appealed against. It should accompany by a fee of two hundred rupees. The form of a memorandum of appeal precisely stating therein the substantial question of law involved. The aggrieved person can file an appeal under section 35H. Application to High Court, within one hundred and eighty days of the date upon which he is served with notice of an order of CESTAT, (not being an order relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment), by application in the prescribed form, accompanied, where the application is made by the other party, by a fee of two hundred rupees, apply to the High Court to direct the Appellate Tribunal to refer to the High Court any question of law arising from such order of the Tribunal. The party applying to the High Court shall clearly state the question of law which he seeks to be referred to the High Court and shall also specify the paragraph in the order of the Appellate Tribunal relevant to the question sought to be referred. The person aggrieved from the order passed by High Court, may prefer to file an appeal before Supreme Court under section 35L of central excise act 1944, read with section 83 of finance act 1994. This appeal shall lie from:- a. Any judgment of the High Court delivered (i) In an appeal made under section 35G; or (ii) On a reference made under section 35G by the Appellate Tribunal before the 1st day of July, 2003; (iii) On a reference made under section 35H, In any case which, on its own motion or on an oral application made by or on behalf of the party aggrieved, immediately after passing of the judgment, the High Court certifies to be a fit one for appeal to the Supreme Court; or (b) Any order passed by the Appellate Tribunal relating, among other things, to the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment. I have already stated before that right to appeal is conditional right. It can be exercised only after fulfillment of conditions like limitation, proper preparation of paper book and filling their of, court fee, and compliance of section 35H of the central excise act 1944. It is also important to mention here that these act and rules does not make a bridge over High court Rules as well as Supreme Court Rules during filling of appeals. These rules will also applicable to such case. On perusal of entire provisions relating to appeals, it appears that our legislation and the government have duly insured that no one should harassed, by implementing department by way of illegal or improper collection of such tax. While it was levied by Finance Act 1994, our legislation and Government very conscious to provide judicious administration of tax collection. They were not intended to collect even single paise, which was actually not leviable, for any reason. For this purposes, it has been included doctrine of natural justice and provided four stages of appeals under Finance Act 1944 as well as Central excise Act 1944. It is my personal opinion.