2013 (7) TMI 460 - AT - Service Tax

Order u/s 73C - Provisional attachment to protect revenue in certain cases. - Whether order passed u/s 73C is appealable to Tribunal - Held that - Action under section 73C is taken pending any proceedings under section 73 or 73A - During the pendency of the proceedings where service tax liability or penalty has to be adjudged, as a measure of protection of the interests of Revenue, attachment of property has been permitted under section 73C. Section 73C per se does not empower the Commissioner of Central Excise Commissioner or any other officer to determine the service tax liability or penalties. That has to be adjudged under the provisions of Section 73 or 73A or any other provisions of the law as provided for - Order passed under section 73C of the Finance Act, 1994 is not appealable to this Tribunal - Decided against assessee.

Summary

Issues:
1. Condonation of delay application for filing appeal.
2. Appeal against Order-in-Original no. 46/STC-I/SKS/12-13.
3. Maintainability of appeal under section 86 of the Finance Act, 1994.
4. Interpretation of powers under section 73C.

Condonation of Delay Application:
The appellant sought condonation of an 11-day delay in filing the appeal due to representations made to the Commissioner regarding property attachment. The delay was attributed to resolving matters with the department. The Tribunal, deeming the explanation satisfactory, condoned the delay.

Appeal Against Order-in-Original:
The impugned order was passed under section 73C of the Finance Act, 1994, by the Commissioner of Service Tax-I, Mumbai. The order provisionally attached 10 aircrafts of the appellant to safeguard revenue interests against payment defaults in other proceedings.

Maintainability of Appeal under Section 86:
The Additional Commissioner (AR) contended that the appeal was not maintainable as section 86 allows appeals only for orders under section 73 or section 83A, not section 73C. The appellant argued that section 86 covers orders under section 83A as well, citing a Tribunal decision. The Tribunal analyzed the provisions and determined that section 73C does not adjudicate service tax liability or penalties, making the appeal not maintainable.

Interpretation of Powers under Section 73C:
Section 73C allows provisional attachment during proceedings under section 73 or 73A to protect revenue interests. The section does not empower the determination of service tax liability or penalties, which falls under section 73 or 73A. The Tribunal concluded that orders under section 73C are not appealable to the Tribunal, dismissing the appellant's appeal and stay petition.

This judgment clarifies the scope of appeal under section 86, emphasizing that orders under section 73C are not appealable as they do not involve adjudication of service tax liability or penalties. The decision highlights the distinction between different sections of the Finance Act, 1994 concerning powers and appeal provisions, ensuring clarity in the appellate process for aggrieved parties.