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Handling of Departmental Proceedings - Survey, Search & Seizure, Adjudication Proceedings and Appeals

 

The objective of this article is to summarise the basic background and reference for the above subject. The practical hints as to how to face the survey, enquiry, summons, SCN , appeals are also discussed. For the adjudication a case study approach has been followed for enhanced understanding. For updation in the end practitioner’s aids have been enumerated.  

Search/summons

Searching of premises by authorized officers

The Commissioner of Central Excise u/s 82 can authorize any ACCE/DCCE to search for and seize documents or books or things, which have been secreted in any place and which in his opinion would be useful for or relevant to any proceeding under this chapter. He may even take up the task himself. The Code of Criminal Procedure 1973 shall also apply here.

The interaction at time of search can be as follows:

  • The Authorisation can be asked to be produced. The same should have recorded the reason why such an inquiry is felt necessary and the documents sought. The Visit Register may be entered.
  • Under no circumstances should the search be obstructed. All assistance asked for may be provided.
  • Factually correct information to be provided and when in doubt the same can be stated. The promise to provide the information later is also permissible.
  • Oral instruction to come to the department can be replied with a letter asking for specific reason for the same. The assessee may also ask for summons to be issued.
  • In the event a statement is to be recorded it has to be ensured that all questions asked and answers provided are recorded. The practice of noting down only a part of the answer and avoiding recording some questions and answers is incorrect as the same may be relevant to the inquiry. It may be confirmed that a copy of the statement would be provided at the end of the recording. In case of any difficulty in this regard a copy of the same may be made prior to signing off. At end of summons and statement recorded the time should be noted.
  • In case of use of coercion/high handed tactics, the retraction statement should be made immediately and the higher Officer informed as to the same with a copy of the retraction.
  • Provide all information to the best of your knowledge.
  • The one year limit would apply in most points as no mala-fide can generally be established for honest assessees. The disclosure requirements should be in place.
  • The reply to unresolved audit point if stakes high, should be with care and may be with legal counsel.

Demand & Adjudication

The demand proceeding will start only on issue of show cause notice

A birds eye view of demand process in the following table:

Initiation of proceedings under Section 73

Whenever there is a short levy/short payment or non-levy or non-payment, proceedings can be undertaken.

Show cause Notice

It is mandatory for the Department to issue a show cause notice.

What is time limit for communication of show cause notice

(a)  Involving fraud, collusion, willful misstate-ment or suppression of facts or contravention of any provisions with intent to evade payment of duty – notice should be served within 5 years from relevant date.

(b)  In other cases – notice should be serviced within 1 year from relevant date.

(c)  Where the service of notice is stayed by court order, the period of such stay would be excluded in computing this time limit.

From which date the time limit will be computed

The date from which the time limit will be computed is defined as ‘Relevant date’. It means -

(a)   In case of short levy/non-levy or short payment/non-payment the date on which the six monthly return is filed. If it is not filed, the date on which it was required to be filed;

(b)   If there is no such time limit, date of payment of duty.

(c)   In cases of provisional assessment, the date of adjustment of duty after final assessment.

(d)   In case of erroneous refund, the date of such refund

Payment to drop proceedings

In case the service tax amount, interest as applicable under Section 75 and penalty of 25% of the service tax within 30 days of receipt of the notice then the entire proceedings shall be concluded. This provision has been done away with effect from 08.04.2011.Now in the course of audit, investigation or verification of the records some short payment is found then in such cases the assessee has the option to pay 1% penalty subject to maximum of 25%. Once an intimation is given, the notice need not be issued.   

Voluntary payment

In case the service provider pays the service tax along with the interest and informs the department about such payment in writing, no notice will be served under this provision. In Finance Act 2010 explanation is added to clarify that no penalties are also imposable. Notice for penalty also cannot be served.

Recording of assessee’s representation

Sub-section 2 to 73 makes it mandatory for the officer to consider the representation of the assessee. The officer has to comply with the principles of natural justice.

Form of order

It is mandatory for the officer to pass a speaking order. Speaking order is one, which gives the reasons for the decision. A simple letter asking for payment of duty is not an order.

Payment on passing of the order

The service provider can either pay the tax determined or on the other hand has right to challenge the order by going further appeal, which grants him rights of obtaining stay of demanded amounts in appeal.

Extended time limit for issuing the show cause notice in terms of proviso to section 73

Proviso to Section 73 provides that if there is fraud, collusion, willful misstatement, and suppression of fact and with intent to evading the payment of duty then the extended period of limitation will be applicable.

Provisional attachment

Section 73C empowers central excise officer with previous approval of Commissioner of Central Excise by an order in writing may attach the property of a person on whom the proceedings under Section 73 or 73A is pending. The attachment shall last only for the period of 6 months from the date of the order but the same may be extended by the Commissioner of Central Excise for further period up to 2 years subject to recording the reasons in writing.

Who can represent the Service Provider?

A counsel being a person who is knowledgeable in the law of Central Excise as the requirement of specialised knowledge is of importance under this law. If representation services are envisaged, the counsel should in addition be a Chartered Accountant, a Cost Accountant, a Company Secretary, a post graduate or honors degree holder in Commerce, an advocate, or post graduate degree or diploma holder in Business administration or a retired employee of the Department of Central Excise or Customs after rendering not less than 10 years service.

Prosecution Section 89(1)

Any person committing the following offence would be liable for prosecution

a.    provides any taxable service chargeable to service tax under sub-section (1) of section 68 or receives any taxable service chargeable to tax under sub-section (2) of said section, 20 without an invoice issued in accordance with the provisions of this Chapter or the rules made thereunder; or

b.    avails and utilizes credit of taxes or duty without actual receipt of taxable service or excisable goods either fully or partially in violation of the rules made under the provisions of this chapter; or

c.    maintains false books of account or fails to supply any information which he is required to supply under this chapter or the rules made thereunder or (unless with a reasonable belief, the burden of proving which shall be upon him, that the information supplied by him is true) supplies false information; or

d.    collects any amount as service tax but fails to pay the amount so collected to the credit of Central Government beyond a period of six months from the date on which such payment becomes due

The punishment would be as follows:

a.    Where the amount exceeds Rs 50 Lakhs with imprisonment for a term which can extend to 3 years. Where there is no specific reason to contrary to be recorded in judgment of court, such imprisonment shall not be less than for 6 months. In other case, such imprisonment may extend to one year.

b.    Where convicted person under this section once again is convicted of an offence then for each subsequent offence the imprisonment for a term which may extend to 3 years. Where there is no specific reason to contrary to be recorded in judgment of court, such imprisonment shall not be less than for 6 months.

c.    The following would not be considered as special and adequate reasons:

  • The fact that accused was convicted for the first time of an offence under this Chapter.
  • The fact that in any other proceeding under this Act, other than prosecution the accused was ordered to pay penalty or any other action has been taken for same act which constitutes offence.
  • The fact that accused was not principal offender and was acting as a secondary party in commissioning the offence.
  • The age of accused.

A person can be prosecuted only with prior permission of Chief Commissioner of Central Excise.

The following is step by step with live example of the Adjudication proceedings:

1.      Departmental Audit/ Scrutiny

Based on the desk review information of the assessee or on the basis of vigilance report, Service tax department would issue a notice asking for certain detailed information or may also issue notice asking the assessee to keep his books of ready for the specified period for departmental audit.

A narrative Illustration is provided after each paragraph in italic underlined, which would help in better understanding of the subject.

 

Illustration: Service tax department issues a notice on 31.08.06 to M/s ABC Builders Pvt Ltd asking for keeping its books of accounts ready for an audit, to be conducted from 15.09.06 to 17.09.06

 

Assessee on receipt such notice is required to reply back to the said notice, wherein he may either confirm the dates of audit as stated in the notice issued by the department or in case otherwise, the assessee may seek extension of time from such audit, he shall also specify the reasons for which he is not ready for the departmental audit on the said dates.

 

Illustration: ABC acknowledges the receipt of the said letter, and requests for postponing the audit, since the tax audit of the company was going on, therefore requested to postpone the departmental audit to 02.10.06

 

During the department audit, the assessee is accepted to keep all the records ready for the audit, and provide all information as desired by the audit team. On completion of audit, the audit queries would be put forth for decision between the auditor and auditee.

 

Once the audit points are discussed, the assessee may either accept the liability and pay the demanded amount along with applicable interest, in case the assessee disagrees with the demand made by the audit team, the department would then proceed to issue a show cause notice, wherein the department would specify the reasons why said Show Cause Notice should not be issued on the assessee demanding tax along with applicable interest and penalties.

 

Illustration: ABC Builders Pvt Ltd is registered under Construction of commercial or industrial Construction services, however after 01.0.07 the company amended its registration certificate to include works contract services also.  On the basis of audit conducted, the department understands the company undertakes contracts from the developers, wherein such developers provide material free of cost to ABC Pvt Ltd without any consideration.

Therefore the department raised an objection stating that the valuation mechanism undertaken by the company to discharge service tax is incorrect. They should have also included such freely supplied material from the developer for the purpose of discharging service tax, since the company had failed to include such freely supplied material, therefore a demand of service tax on 416 crores along with interest was questioned to be paid by the assesee.

The assessee does not accept the audit objection raised, with respect to inclusion of such freely supplied material while discharge service tax.

 

2.      Show Cause Notice

A show cause notice may be issued demanding taxes along with applicable interest and penalties, also the show cause notice would specify the time limit generally of 30 days time from the date of communication of notice to reply to the said notice.

 

Illustration: A show cause notice is issued to ABC Pvt Ltd by Deputy Commisioner Of Central Excise  in August  2009 for demanding Service Tax at 33% on 416 lakhs being Free Of Cost  materials supplied  by developer ,  For period  10.9.2004 to 31.3.2008. + Interest + Penalty u/s 76 , 78.

 

While drafting the reply to show cause notice, the assessee should ensure following points

      i.        Time limit with respect to show cause notice and period of demand: In case the period of demand exceeds one year from the relevant date, the show cause notice can be challenged on the basis of period of limitation U/s 73 of Finance  provided there is no short levied or short payment or erroneous refund of service tax by reason of fraud, collusion, wilful misstatement, suppression of facts or contravention of any provisions of this Chapter or of the rules made there under with intent to evade payment of service by the person chargeable with the service tax or his agent.

 

  1. In case the extended period of limitation is evoked the period of demand cannot exceed the period of five years from the relevant date.

 

  1. While drafting the show cause notice, ensure the jurisdiction of the officer issuing the show cause notice is correct. In case the officer issuing the show cause notice does not have a valid jurisdiction, the said show cause notice shall be an invalid show cause notice.  

 

  1. Ensure the show cause notice is signed by the officer issuing the show cause notice.

 

  1. Ensure a valid reasoning is given in show cause notice, when a demand for tax is mentioned in the notice, without valid reasoning a show cause notice can be challenged to be an invalid show cause notice.

 

  1. Ensure a show cause notice is supported with proper workings or computation annexure, in case the demand made is not supported with any annexure the same can be challenged to be an invalid show cause notice.

 

  1. Show Cause Notice should be issued only after successful detailed investigation, in case a show cause notice is issued merely on the basis of  audit report, said show cause notice shall not sustain this view was upheld in case of Kirlosker Pneumatic and Co Ltd Vs CCE 2010-TIOL-159-CESTAT-MUM

 

  1. A show cause notice should be drafted in the following manner
    1. Heading of Show Cause Notice should contain the address of the Commissionerate issuing the show cause notice.
    2. Show Cause Notice reference no should be provided along with the address of the assessee.
    3. Brief facts of the case should be mentioned
    4. Reasons as to why the subject show cause notice was issued should be mentioned.
    5. The total amount of demand raised, interest and penalty demanded under the specified section should be mentioned in the show cause notice.
    6. The show cause notice should have grounds of submissions made by the assessee.
    7. Assessee should justify the reasons for which the show cause notice was wrongly issued. Assessee should refer to all the relied upon case laws along with citation while preparing submission.
    8. In case the assessee wishes to substantiate his reasoning along with other documentation or annexure, the same should form part of the annexure to show cause notice.

 

  1. A personal hearing should be asked for in the written submission made by the assessee.
  2. The show cause notice should also accompany a authorization letter duly signed by the assessee, who authorizes the representative to appear before the Assistant Commissioner or Commissioner on behalf the Assessee.

 

Illustration: Reply to Show cause notice (SCN)

The following submissions were made in the reply to SCN.

  1. Firstly ABC Pvt Ltd (Noticee) submits the SCN was issued without any detailed investigation, in case of Kirlosker Pneumatic and Co Ltd Vs CCE 2010-TIOL-159-CESTAT-MUM it was held that any SCN issued without any detailed investigation is invalid, therefore the entire demand in SCN is not sustainable.


  1. The Noticee submits that the nature of service rendered by noticee amounts to works contract service 65(105)(zzzza), wherein the noticee had paid VAT on the value of material transferred during the course of execution of works contract, and the activity undertaken by the noticee is that of construction of commercial or industrial services, therefore the said activity would fall under works contract liable to service tax only w.e.f 01.06.07.


  1. Noticee submits the activity undertaken by the noticee was taxable only w.e.f 01.06.07 only, further this view is supported by the budget speech of finance minister and also confirmed by the following decisions.
  1. L&T (2007 TIOL 744 CESTAT AHM)
  2. Diebold Systems (P) Ltd. vs CST 2008 (9) STR 546 (Tri.-Mad)
  3. Jyoti Limited vs CCE 2008 (009) STR 0373 (Tri.-Ahmd)
  4. L & T Ltd V/s CCE 2007 (7) S.T.R. 224 (Tri. - Ahmd.)
  5. Air Liquide Engg India Pvt. Ltd V/s CCE 2008 (9) S.T.R. 486 (Tri. - Bang.)
  1. Further the Noticee submits that the when a new service is brought into tax net without altering existing services, then it shall be construed that such service would be taxable only from the date of its levy i.e. 01.06.07. Therefore demanding Service tax from 01.9.04 upto 01.06.07 is invalid. This view has been upheld in case of Glaxo Smithkline Beecham Pharmaceuticals Ltd {2006 (3) STR 711 (T-Mum)}; BCCI Vs. CST 2007 (7) STR 384 (Tri).


  1. Further the noticee submit, supply of material free of cost by the client of noticee was not required to be added until 07.7.09, since the explanation with respect to adding value of freely supplied material by client was inserted only from 7.7.2009 by way of explanation, therefore including such value prior to 7.07.09 was invalid.


  1. Further the noticee submit as per Section 66 of Finance Act, service tax is to be paid only on the value of service and not on the value of material, therefore issuing SCN with respect to including the value of material is invalid.


  1. Further the noticee submits that they were not liable to pay service tax prior to 01.06.07, however due to confusion they had paid service tax which needs to be considered as deposit. On this basis itself the entire SCN needs to be set aside.


  1. Assuming but not admitting the liability the noticee submits that, even thou they were be adjudged liable to pay service tax on value of free supplied material by client, the amount of service tax already paid on 33% of abated value was much more than the value of freely supplied material, (which the noticee had paid even thou they were statutorily not required to pay the same) therefore the demanding service tax such freely supplied material is not sustainable. 


  1. The noticee submits that the SCN is a time barred, as the period of demand is from 10.9.04 upto 31.3.08, and the SCN was issued on 31.08.2009, therefore the said demand is time barred under section 73 of finance Act.


  x.          Further the noticee submits that they had paid service tax under construction services, even thou they provided works contract services, and they were not liable to pay service tax, the noticee being a tax compliant assessee paid the taxes even thou they were not liable to tax. Further they had filed there periodic returns, therefore by no stretch of imagination the noticee can be construed to have an intension to evade payment of taxes, therefore the provisions of section 78 fails, and the entire demand raised is required to be set aside.


 xi.          Further the noticee submits, when the demand itself is not sustainable levying interest and penalty under section 76 and invoking extended period of limitation is incorrect. On this basis itself the entire demand needs to be set aside.

 

3.      Personal Hearing

A personal hearing would be fixed before the Assistant Commissioner or Commissioner, wherein the authorized representative would reiterate his written submission and shall substantiate his submissions made. In case the authorized representative is willing to make additional submission, he shall do so.

 

Illustration: On personal hearing the authorized representative reiterate the written submissions and submits the demand, interest and penalty provisions were not sustainable.

If they had something more to add the same should have been sent earlier to the date of hearing under dated acknowledgement.

 

4.      Order- In -Original 

The Assistant Commissioner or Commissioner of Service tax on the basis of written submissions made and on the basis of additional submissions made during personal hearing shall dispose of the case in Order –in – Original.


Illustration: After careful consideration of written submission and submission made during the PH, Assistant Commissioner of Service tax confirms the demand interest and penalty, since the nature of service rendered by noticee is that of Commercial or industrial construction services, in terms of notification 1/2006 value of freely supplied material is to be added to discharge service tax.

 

Appeals

The provisions relating to appeals are dealt in section 85, 86 of Finance Act, 1994 & Section 35F to 35O of the Central Excise Act 1944 which have been made applicable to Service tax covering totally 12 sections The procedural aspects of the appeals have been dealt in Service Tax Rules, 1994.

(a) Appeal to Commissioner (Appeals)

In terms of Section 85, any person aggrieved by any decision or order passed by an adjudicating authority subordinate to Commissioner of Central Excise may appeal to the first appellate authority i.e. Commissioner of Central Excise (Appeals). Opportunity of being heard is to be given to the aggrieved party.

There is a requirement of making pre-deposit of service tax demanded in the order before making an appeal. However an application may be made before the same authority asking for waiver of the said pre-deposit. The Authority concerned may waive the said pre-deposit either in part or full.

The appeal shall be filed within 3 months from the date of communication/ receipt of the decision. The commissioner may condone the delay for a further period of 3 months. There is no power either with the Commissioner (Appeals) or even to CESTAT to condone the delay beyond the said period of 3 months after the initial period of 3 months.

(b) Appeal to CESTAT

In terms of section 86, the second appeal lies to the CESTAT (Customs, Excise and Service Tax Appellate Tribunal) generally known as Tribunal. However if the first adjudication order is passed by the Commissioner of Central Excise, the appeal lies directly with the Tribunal.

By virtue of this any person aggrieved by the order of commissioner of Central Excise or Commissioner of Central Excise (Appeals) may appeal to CESTAT.

The Committee of Chief Commissioners of central excise or commissioners of central excise is not satisfied by the order passed by the commissioner of central excise or Commissioner of Central Excise (Appeals) respectively may direct the central excise officer to file an appeal.

The appeal shall be filed within 3 months from the date of communication/ receipt of the decision.

Either assessee or the commissioner of central excise shall be having 45 days from the receipt of the notice for filing cross objection memorandum. The CESTAT shall be having powers to condone the delay.

(c) Fees for appeal to Tribunal

The prescribed fee is as under:

Total of Service tax, Interest and penalty (Rs.)

Fee (Rs.)

Less than 5,00,000

1,000

5,00,001 to 50,00,000

5,000

More than 50,00,000

10,000

The fee for the stay application or rectification or restoration shall be Rs. 500.

No such fee shall be paid by the central excise officer for the appeal and both of them in case of

Cross Objection Memorandum

Where the matter involves only the question of facts and nothing of law the order passed by the Tribunal will be final and it cannot be taken further.

Where the matters involves question of law the cases can be further appealed to High Court and/or Supreme Court.

Where there is an order of demand for tax and penalty on which the appeal is preferred it is a precondition that the duty and penalty to be deposited. However the appellate authority may dispense with such pre-deposit of the duty demanded or penalty levied on the reason that those pre-deposit would cause undue hardship to such person.

Summary of Appeal Provisions

The law relating to appeal can be summarized in the form of following table.

Order passed by

Appeal lies to

Form to be used

Section
reference

Assistant/Deputy/ Additional Commissioner, and assessing officer

Commissioner (Appeals) Within 3 months of receipt of order

ST-4

Sec. 85

Commissioner/ Commissioner (Appeals)

Appellate Tribunal
(within 3 months of
receipt of order)

ST-5

Sec. 86

Memorandum of Cross Objections

Appellate Tribunal

(45 days from the date of communication of appeal)

ST-6

Sec. 86

 

First Charge on the Property: Section 88: Any amount of Duty, penalty, interest or any other sum payable by an assessee or any other person under the service tax provision shall  have the first charge on the property of the assessee or the person as the case may be. However this is subject to the provision of

(a)  529A of the Companies Act, 1956

(b)  Recovery of Debts due to Banks and the Financial Institution Act, 1993

(c)  Securitisation and Reconstitution of the Financial Assets and the Enforcement of Security Interest Act, 2002.

 

Continuing our example, the appellate stages would be as follows:

 

5.      Appeal before Commissioner of Central Excise (Appeals)

Any of the aggrieved parties, by the order of the original adjudicating authority shall file an appeal before the Commissioner of Central Excise (Appeals) in Form ST-4 (ST-4 should give a detailed submissions which the Appellant wishes to rely upon) along with stay application, within three months from the date of the communication of order. In case the appellant fails to file the appeal in ST-4 within three months from the date of Communication of Order in original, shall be obliged to file a condonation of delay. Commissioner of Central Excise (Appeals) may at his disposal grant condonation of delay for further period of three month if the Commissioner(Appeals) is satisfied that the appellant had sufficient cause for not filing the appeals within the prescribed time limit.

 

ST-4 should be accompanied with the following documents.

        i.        Authorization letter

       ii.        Certified true copy of order in original

      iii.        Copy of reply to show cause notice along with  annexures, if any

 

     iv.        Copy of Show cause notice

 

Illustration:  (Consider the submission made before the Assistant Commissioner)

ABC Builder Pvt Ltd (Appellant), reiterate the submissions made in ST-4, explaining the activity undertaken by the appellant falls under works contract services and not construction of commercial or industrial services, further the appellant submits that the activity under taken by the appellant was not taxable upto 01.06.2007, further with respect to value of free material supplied by client was taxed only from 07.07.09, therefore the impugned order travels beyond the provisions of law, which is completely wrong and not sustainable.

Further the impugned order had passed an order contrary to the facts without considering the above said decisions and without understanding the written submissions. Further the appellant submits that the impugned order was passed with a made up mind, without looking into facts and merits of the case. Therefore the appellant humbly request the Honorable Commissioner (Appeals) to look into the matter on the basis of written submissions made in ST-4 and set aside the impugned order and grant relief.  

6.      Personal hearing before Commissioner (Appeals) And Order -in -Appeal

On personal hearing the authorized representative shall appear before the Commissioner (Appeals) and he shall make submissions and /or additional submission if any. On the basis of hearing both sides Commissioner (Appeals) shall pass an Order in Appeals. Until the disposal of the case and until three months from the date of communication of the Order in Appeal the first stage adjudicating authority can’t demand taxes. However on expiry of the time limit to file an application before CESTAT, the first stage adjudicating authority can initiate recovery proceedings provided the assessee had not preferred an appeal before CESTAT.

 

Illustration: On personal hearing the authorized representative would reiterate the written submissions and submits the demand, interest and penalty provisions were not sustainable.

 

Order In Appeal

On the basis of the submission made by both the parities, I am of the considered view that, the appellant renders works contract services, which was not liable prior to 1.06.07, further value of free of cost material supplied by client to appellant shall be included for assessable value only from 07.07.09 and not prior to that. Therefore I grant relief to the appellant from all demand, interest and penalty.

 

7.      Appeal to Tribunal

Any of the aggrieved parties, by the order of Commissioner (Appeals) shall file an appeal before CESTAT in Form ST-5 along with stay application, within three months from the date of the communication of order. In case the appellant fails to file the appeal in ST-5 within three months from the date of Communication of Order in Appeal, shall be obliged to file a condonation of delay stating the reasons for such delay, if the CESTAT is satisfied as to sufficiency of reason for delay shall allow the appeal.

ST-5 should be accompanied with the following documents

        i.        ST-5 application along with stay application and related annexures

       ii.        Authorization letter

      iii.        Demand draft on the basis of quantum of demand

     iv.        Certified true copy of Order in Appeal

      v.        Reply to Order in original

     vi.        Copy of Order in original

    vii.        Copy of reply to show cause notice

   viii.        Copy of Show cause notice

 

The respondent would have a time limit of 45 days from the date receipt of notice to file cross objection memorandum.

 

8.      Personal Hearing

On submission of ST-5 application, a personal hearing would be called for, wherein, on the basis of the merits of the case, the matter would be decided whether the matter is to be stayed or not. In case the matter is stayed, then the appellant would not in liable to pay any demand until the disposal of the case. In the case the stay application is rejected the appellant would be required to pay an amount as directed by the tribunal as pre-deposit.

 

9.      Final Hearing

On final hearing of the matter, the detailed analysis of the case would be studied, evidences would be verified and other relied upon documentations would be looked into and decide the matter considering relevant judgments made in this regard and also the relevant provisions of the Act would be looked into. On the basis of the said analysis the matter would be decided. CESTAT would be the final fact finding authority,

 

The order of the Tribunal would have to go to High Court generally however if the matter involves rate of tax or valuation the case can be taken directly to the Supreme Court.

 

(d) Appeal to High Court

(d)    An appeal shall be made to the High Court as per Section 35G from every order passed in appeal by the Appellate Tribunal.

(e)    However if the issue pertains to determination of any question having a relation to the rate of duty/tax or to the value for the purposes of assessment among other things, then the same will go to National Tax Tribunal and until such Tribunal is formulated, it will go to Supreme Court.

(f)     For admitting the appeal the High Court should be satisfied that the case involves a substantial question of law.

(g)    The Appeal to High Court can be made by the Commissioner of Central Excise or the other party aggrieved by any order passed by the Appellate Tribunal.

(h)    The Appeal has to be filed within 180 days from the date on which the order to be appealed against is received accompanied by a fee of Rs. 200 and in the form of a memorandum of appeal precisely stating therein the substantial question of law is involved.

(i)      Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. The appeal shall be heard only on the question so formulated.

(j)      The respondents shall, at the hearing of the appeal can argue that the case does not involve such question.

(k)    However the Court has an inherent power to hear, for reasons to be recorded, the appeal on any other substantial question of law not formulated by it, if it is satisfied that the case involves such question.

(l)      The High Court will decide the question of law so formulated and deliver such judgment thereon containing the grounds on which such decision is founded.

(m)   The High Court may determine any issue which—

a.    Has not been determined by the Appellate Tribunal; or

b.    Has been wrongly determined by the Appellate Tribunal, by reason of a decision on such question of law.

(n)    In the High Court, the matter shall be heard by a bench of not less than two Judges of the High Court, and shall be decided in accordance with the opinion of such Judges or of the majority, if any, of such Judges.

(o)    Where there is no such majority, the Judges shall state the point of law upon which they differ and the case shall, then, be heard upon that point only by one or more of the other Judges of the High Court and such point shall be decided according to the opinion of the majority of the Judges who have heard the case including those who first heard it.

(p)    The provisions of the Code of Civil Procedure, 1908 relating to appeals to the High Court shall unless otherwise provided in Central Excise Act may apply in the case of appeals under this section.

 

10.    Appeal Before High Court

Any person aggrieved by the order of CESTAT, can appeal before the high court provided the matter is not pertaining to fact related issues.

In order to admit the appeal the High Court should be satisfied that the case involved substantial question of law.

The time limit to file the appeal before the high court would be 180 days from the date on which the order to be appealed against is received accompanied by fee of Rs 200 and in form of memorandum of appeal precisely stating therein the substantial question of law is involved.

High court may determine the matter which has was previously not determined by the CESTAT or which has been wrongly been determined by the CESTAT, by reason of decision on such question of law.

If subject matter is with respect to valuation or rate of duty the matter would go to National Tax Tribunal and until such Tribunal is formed until such time it will go to Supreme Court.

 

(e) Appeal to the Supreme Court:

As per section 35L an appeal will lie to the Supreme Court from—

(q)    Any judgment of the High Court on appeal as mentioned above; or

(r)     On a reference made by the Appellate Tribunal before 01.07.2003; or

(s)     On a reference made under Section 35H for orders passed by Tribunal before 01.07.2003

(t)      Any order passed by the Appellate Tribunal before the establishment of the National Tax Tribunal, relating, among other things, to the determination of any question having a relation to the rate of duty/tax or to the value for purposes of assessment.

 

11.    Appeal Before Supreme Court

Any person aggrieved by the order of High Court shall file an appeal before the Supreme Court, wherein any judgment of high court on appeal as mentioned as fit to be appealed before Supreme Court.

 
CA Madhukar N. Hiregange



Category Service Tax, Other Articles by - Madhukar N Hiregange 



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