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Appeal with Comm. App.
Appeal with Commissioner (Appeals) - Service Tax
As per section 85 of the Finance Act, 1994 as amended, any person who is aggrieved by any decision or order passed by any authority lower in rank to Commissioner can file appeal before the Commissioner (Appeals), having jurisdiction over the authority by whose decision or order person feels aggrieved.
 
Procedures and Time Limit

The appeal has to be filed in prescribed Form ST-4 within two months from the date of receipt of the decision or Order of such adjudicating authority, relating to Service Tax, interest or penalty. The appeal should be verified by the person who is authorized to verify. For the purpose of signature on verification provisions of Rule 3 of Central Excise (Appeals) Rules, 2001, may be referred as per which the following persons can sign on verification.

The grounds of appeal and the form of verification as contained in Form No. ST-4 shall be signed,-
 
(a) in the case of an individual, by the individual himself or where the individual is absent from India, by the individual concerned or by any person duly authorised by him in this behalf; and where the individual is a minor or is mentally incapacitated from attending to his affairs, by his guardian or by any other person competent to act on his behalf;
 
(b) in the case of a Hindu undivided family, by the Karta and, where the Karta is absent from India or is mentally incapacitated from attending to his affairs, by any other adult member of such family;
 
(c) in the case of a company or local authority, by the principal officer thereof;
 
(d) in the case of a firm, by any partner thereof, not being a minor;
 
(e) in the case of any other association, by any member of the association or the principal officer thereof; and
 
(f) in the case of any other person, by that person or any person competent to act on his behalf.
 
The appeal before the Commissioner (Appeals) is to be filed in duplicate, one copy of appeal should be accompanied by certified copy of Order against which appeal is proposed to be filed. One copy of such Order and main copy of appeal should be affixed with necessary Court Fee stamp as prescribed. All the documents which are felt important for the reason that these have not been considered by the lower authority or which are having bearing over the issue in dispute shall be annexed with the appeal petition. The proforma of ST-4 asks for preliminary details like, name, address, details of authority against whose order appeal is preferred etc. With these details, there are two separate headings, viz., “Statement of Facts” and “Grounds of Appeal”. In the “Statement of Facts”, one has to mention the backdrop history regarding “person” who is filing or on whose behalf appeal is being filed, the details of how this decision or order appealed against has come to be made or passed by the concerned authority. In the "Grounds of Appeal”, one has to give the grounds on which one feels that the decision or order made can be challenged. Along with the grounds one can give the decisions of Quasi Judicial or Judicial Forums on the similar issue or drawing ratio from them as can be applied to the issue on hand. One should always request the Commissioner (Appeals) for granting opportunity of personal hearing. As during Personal Hearing, one can easily convince the authority on the arguments being made. The Commissioner (A) is bound to give three opportunities for personal hearing before proceeding to decide the appeal ex-parte.
 
Pre-deposit
In case there is any liability created by virtue of decision or order against which appeal is proposed to be filed, the appeal petition is to be accompanied by Application for dispensing with the requirement of pre deposit of duty, interest or penalty, as the case may be. The said application is required to be filed looking to the provisions contained in section 35F of the Central Excise Act, 1944, which has been made applicable to the Service Tax matters. As per the provisions contained in section 35F, any person desirous of filing appeal against any decision or order under which any amount has been determined as Service Tax, interest or penalty, shall pay the same before filing appeal before the Commissioner (Appeals). However, proviso to section 35F states that in exceptional cases where the said authority is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, such authority, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue.
 
Of late this exception has become a rule and the rule has become a exception. The experience has shown that in almost all the cases involving demand for tax (Service Tax), fine, penalty, interest, etc., the provision of exception is invoked and applications are made requesting the Commissioner (Appeals) to dispense with the requirement of pre deposit condition envisaged under section 35F of the Central Excise Act, 1944. However, the discretion is wasted with the Commissioner (Appeals) to decide whether or not in particular case such waiver can be granted, if not, he may impose certain conditions, which are required to be fulfilled by the appellant. Failure to fulfill such condition may entail in the main appeal petition being dismissed by the Commissioner (Appeals).
 
The guidelines which are required to be kept in mind by the Commissioner (Appeals) while disposing of the application for dispensing with the requirement of pre deposit condition under section 35F ibid are contained in the judgment of the Honorable Supreme Court in the case of Benara Valves Limited as reported in STO 2006 SC 1264 and in the case of Indo Nissan Oxo Chemicals Industries Limited as reported in STO 2007 SC 1447.
 
The law requires that the Commissioner (Appeals) should decide the application for dispensing with the requirement of pre deposit within one month of its receipt and decide the main petition within six months of filing. However, where the main petition is accompanied by any Miscellaneous Application. The Commissioner (A) would before disposing of the main petition dispose of the Miscellaneous Application, there the said authority may not be able to decide the main petition within six months as prescribed.
 
Further Appeal
The Order passed by the Commissioner (Appeals) are not final, they are subject to further scrutiny by the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) or before the Honorable High Court or Supreme Court in terms of section 35G or section 35L of the Central Excise Act, 1944, respectively, or directly invoking the right exercising Article 226 of the Constitution of India. The Stay Order passed on the Application for dispensing with the requirement of pre deposit not being final order passed under section 35(A)(2) of the Central Excise Act, 1944, cannot be appealed to CESTAT, however, exercising the rights under Article 226 of the Constitution of India the same can be challenged before the jurisdictional High Court.
TRADE NOTICE NO. 1/2010

 

Case Laws Related

  • STO 2012 CESTAT 1024
  • Remand: Commissioner (A) having remanded the matter without having power to do so: Stay of such Order allowed. 

  • STO 2012 CESTAT 840
  • Remand: Power of Commissioner (A) to remand has been withdrawn: Matter remanded to Commissioner (A) to decide the appeal on merits.

  • STO 2012 CESTAT 864
  • Remand: Power of Commissioner (A) to remand in question: Commissioner (A) took pains and decided the issue of refund on merits as per Board’s Circular and only for requantification of refund matter was remanded: Department’s appeal dismissed.

  • STO 2012 CESTAT 738
  • Remand: Commissioner (A) has no power to remand the case back to the adjudicating authority.

  • STO 2012 CESTAT 740
  • Remand: Commissioner (A) cannot remand the matters to the subordinate authorities even in Service Tax matters.

  • STO 2012 CESTAT 714
  • Remand: Commissioner (A) decided the case on merits, only for quantification purpose the matter was remanded, cannot be considered as a remand order.

  • STO 2012 CESTAT 634
  • Remand: Powers of Commissioner (Appeals): Commissioner (Appeals) does not have power under Section 85 (4) of the Finance Act, 1994 to remand the case to the lower adjudicating authority. 

  • STO 2012 CESTAT 630
  • Remand: Power of Commissioner (Appeals): In case of service tax also the Commissioner (Appeals) is not empowered to remand the matter, he has to decide the matter by himself. 

  • STO 2012 CESTAT 717
  • Remand: Commissioner (A) cannot remand the matter: When one of the partner of the partnership dies, the partnership firm dissolves, unless there is a contrary provisions in the agreement: Matter remanded to original adjudicating authority for fresh decision after verifying the agreement and giving notices to partners who are alive and legal heirs of the deceased partner.

  • STO 2012 CESTAT 636
  • Power of Commissioner (A) to remand: The Commissioner is not empowered to remand the matter, he has to decide the matter by himself. 

  • STO 2012 CESTAT 819
  • Remand: Commissioner (Appeals) deciding the issue substantively and only asking the lower authority to requantify the demand, is not a remand.

  • STO 2012 CESTAT 560
  • Reasoned Order: Commissioner (Appeals), being the first appellate authority, he is expected to go through the facts of the case as also the grounds raised before him, record the submissions made before him and to give his own finding on the same. Disposal of the appeal with distorted reproduction of appellants’s submission and mere endorsement of the order of original adjudicating authority CANNOT BE appreciated at all. 

  • STO 2012 CESTAT 544
  • Appeal: Condonation of delay: Commissioner (A) has no power to condone delay beyond the specified period: Delivery of Order taken by nephew of appellant: Appellant cannot claim nephew was not authorized, therefore, date of receipt of photocopy of order should be taken as date of receipt of order.

  • STO 2012 CESTAT 445
  • Condonation of delay: Appeal with Commissioner Service Tax Chennai instead of Commissioner (Appeals): Delay of two years: Commissioner (A) being statutory authority has no power to condone delay for a period more than the one prescribed in the statute.

  • STO 2012 CESTAT 471
  • Appeal : Delay : No authority has power to condone delay beyond the period stipulated under the law.

     

  • STO 2012 CESTAT 463
  • Commission: Appellants retained 2% to 3% of amount received from principals and paid remaining amount to sub-contractors who had actually undertaken work on “back-to-back basis”: Service tax paid on entire amount by principal, hence, amount retained cannot be termed as “commission” and taxed under BAS.

  • STO 2012 CESTAT 525
  • Remand: Commissioner (A) has power to remand as declared by Honorable Punjab & Haryana High Court.

  • STO 2012 CESTAT 133
  • Appeal: Delay: The statutory powers given to the Commissioner (Appeals) for condoning the delay up-to a specific limit cannot enable him to condone the delay beyond that period. 

  • STO 2012 CESTAT 412
  • Remand: Power of Commissioner (A): Commissioner (Appeals) has examined the nexus closely and given his own findings and the matter was remanded to the original authority only for the purpose of quantification based on the Chartered Accountant's certificate. This cannot be treated as a case of remand by the Commissioner (Appeals).

  • STO 2012 CESTAT 400
  • Remand by Commissioner (Appeals): Directions for re-quantification is not remand.

    Cenvat Credit: Refund: Registration of assessee prior to taking credit is not a pre condition under the statute.

  • STO 2012 CESTAT 404
  • Remand: Commissioner (A) although cannot remand the matter: However, directions to quantify the refund is not remand.

  • STO 2012 CESTAT 305
  • Remand: Commissioner (A) giving clear findings on the merit and only asking the lower authority for re-quantification cannot be considered remand.

  • STO 2012 CESTAT 319
  • Remand: Commissioner (Appeals) giving clear findings and allowing refund of unutilized credit by holding that there was nexus between input and output services, only for quantification purpose, sends matter to the lower authority, cannot be considered as remand order.

  • STO 2012 CESTAT 390
  • Remand: Commissioner (A) has no power to remand: Refund of unutilized credit: Matter remanded to original authority with directions to pass orders on the basis of directions given by Commissioner (A).

  • STO 2012 CESTAT 408
  • Remand: Commissioner (A) was required to examine the documents and ask the respondents to produce documentary evidences for the years which were not produced by them: Remand by Commissioner (A) not proper: Matter remanded to Commissioner (A) for decision on merits.

  • STO 2012 CESTAT 30
  • Remand: Commissioner (A) giving findings on the merits and only for requantification and verification of documents sent the matter to original authority, cannot be considered as remand.

     
     

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