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Appeal with CESTAT

Appeal to CESTAT
As per section 86 of the Finance Act, 1994, as amended any assessee (person) aggrieved by an order passed by a Commissioner of Central Excise as original adjudicating authority under section 73 or section 83A or section 84, or an order passed by a Commissioner of Central Excise (Appeals) under section 85, may appeal to the Appellate Tribunal against such order.
 
Period and Procedures

The appeal shall be filed within three months of the date on which the order sought to be appealed against is received by the assessee, There is a prescribed proforma ST-5 for filing appeal to the Tribunal. The appeal is required to be filed in quadruplicate to the Assistant Registrar of the Zonal Bench of Tribunal having jurisdiction over the authority who has passed the Order.  Each copy of appeal petition should be accompanied by a legible copy of Order appealed against. One of such copy of Order appealed against should be a certified copy. 

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.

 
Grounds of Appeal

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.

 
Statement of Facts

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 and appealed against 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 Tribunal for granting opportunity of personal hearing. As during Personal Hearing, one can easily convince the authority on the arguments being made. There are separate CESTAT Procedure Rules (please refer CESTAT Procedures Rules) which may be referred for knowing the detailed procedure in this regard. 

In case there is any liability created by virtue of decision or order against which appeal is proposed to be filed or where the Commissioner (Appeals) has upheld the order confirming the Service Tax liability, or liability towards interest and/or penalty, 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 duty, interest or penalty, shall pay the same before filing appeal before the CESTAT. 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.  

It is observed that in the current scenario of Revenue oriented trend, 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, fine, penalty, interest, etc., the provision of exception is invoked and applications are made requesting CESTAT 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 Tribunal 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 Tribunal. 

The guidelines which are required to be kept in mind while disposing of the application for dispensing with the requirement of pre deposit condition under Section 35F ibid are contained in the judgement 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.

 
Prescribed Fee Structure

An appeal to the Appellate Tribunal shall be accompanied by a fee of-  

(a) where the amount of Service Tax and interest demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is five lakh rupees or less, one thousand rupees;  

(b) where the amount of Service Tax and interest demanded and penalty levied by any Central Excise officer in the case to which the appeal relates is more than five lakh rupees but not exceeding fifty lakh rupees, five thousand rupees;  

(c) where the amount of Service Tax and interest demanded and penalty levied by any Central Excise officer in the case to which the appeal relates is more than fifty lakh rupees, ten thousand rupees; 

Every application made before the Appellate Tribunal,- 

(a) in an appeal for grant of stay or for rectification of mistake or for any other purpose; or 

(b) for restoration of an appeal or an application, shall be accompanied by a fee of five hundred rupees. 

The Tribunal may refuse to admit an appeal where the amount of fine or penalty determined by such order, does not exceed fifty thousand rupees.

Besides any assessee on being aggrieved by the Order passed by Commissioner as original authority or Commissioner (Appeals) as first appellate authority, there may be cases, where the decision of these authorities is in favour of the assessee and hence, assessee would not prefer any appeal, however, if the department reviews the Order and finds fit to be challenged, the department would file appeal against such Order within the limit prescribed. The asseessee or department, who is "other party” would on receipt of notice that an appeal has been preferred under this section, can file,within forty-five days of the receipt of the notice, a memorandum of cross-objections verified in the prescribed manner against any part of the order appealed against and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3) of section 86 of the said Act. 

The Tribunal has inherent power to condone the delay in filing appeal or memorandum of cross objections beyond the statutory period subject to satisfaction of the cause being shown as sufficient to have prevented the aggrieved person from preferring the appeal or cross objection within stipulated time.

 
Further Appeal

Against the Order given by the Tribunal an appeal before the High Court or Supreme Court under section 35G or 35L of the Central Excise Act, 1944, can be filed.

The Tribunal has power to recall the Final order which has been passed ex-parte provided the party who is aggrieved by such ex-parte order makes an application for restoring the appeal and shows reasonable and justifiable grounds to show that it was prevented from appearing before the Tribunal for personal hearing when the matter was so fixed. Reference may be made to judgment of the Honourable Supreme Court in the case of J.K.Synthetics Limited reported in STO 1996 SC 35.

Case Laws Related

  • STO 2013 CESTAT 199
  • Delivery of Order: Appeal rejected as time barred: Section 37C(2) of the Central Excise Act, 1944: Order said to have been sent by Registered Post – No proof of delivery: Matter remanded to Commissioner (A) for reconsideration.

  • STO 2013 CESTAT 240
  • Penalty: Appeal: As no personal penalty was imposed in the adjudication order and that order has not been reviewed the appeal filed by the appellant is dismissed as in fructuous.

  • STO 2013 CESTAT 123
  • Appeal: Appeal filed against order not passed under section 73 not maintainable before CESTAT.

  • STO 2013 CESTAT 155
  • Condonation of delay: Medical certificate produced only shows that the concerned person was having chronic hypertension since long and does not give exact date as to when the treatment started, etc: Condonation rejected.

  • STO 2013 CESTAT 156
  • Appeal: Filed in time before wrong authority: Authority should have decided the appeal on merit instead of rejecting on technical ground.

  • STO 2013 CESTAT 160
  • Appeal: Condonation of delay in filing supplementary appeal: Main appeal filed within time: delay condoned.

  • STO 2013 CESTAT 119
  • Condonation of Delay: Law of limitation is thus founded on public policy which is enshrined in the maxim interest reipublicue up sits finis litium (It is for general welfare that a period be put to litigation): Unreasonable and unexplained delay makes the remedy liable to be fatal.

  • STO 2013 CESTAT 102
  • Condonation of delay: Delay of 259 days: Abuse of process of law apparent from the conduct of the appellant does not permit to consider the length of delay to be reasonable. 

  • STO 2013 CESTAT 28
  • Appeal: Appealable order: Letter issued by the Superintendent is not an appealable order issued by a competent authority.

  • STO 2013 CESTAT 130
  • Condonation of delay: Delay caused due to absence of concerned person from duty: Records show that the concerned person was absent from duty: Delay of 143 days condoned.

  • STO 2013 CESTAT 88
  • Condonation of Delay: Actual delay of 225 days, appellants tried to explain delay of only 181 days: Reason for delay that they were awaiting outcome of their application under Section 74 filed with the Commissioner: Such application also found to have been made much after statutory period for filing appeal was over: Condonation not granted. 

  • STO 2012 CESTAT 240
  • Appeal: Commissioner (A) dismissed the appeal filed against communication of the Assistant Commissioner asking for reversal of cenvat credit along with interest, as non maintainable: Tribunal found communication of the Assistant Commissioner is a quasi judicial decision, hence, appeal maintainable : Matter remanded back to Commissioner (Appeals).

  • STO 2012 CESTAT 47
  • Refund: Authority has power to condone marginal delay of 17 days.

     
     

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