2008 (9) TMI 55 - AT - Service Tax

Maintainability of appeal against a letter of the departmental authorities unless there is a n adjudication resulting in demand for duty or penalty etc. appeal is not maintainable held that assessee if desires to prefer appeal he is required to pay requisite fee contention of appellant that in terms of section 86(6) he is not required to pay fee is wholly misconceived because provisions not envisage any exemption except in case of appeals by department or cross-objection

Summary

Issues Involved:
1. Maintainability of the appeal against a clarificatory letter.
2. Requirement of payment of appeal fee under Section 86 of the Finance Act, 1994.

Detailed Analysis:

1. Maintainability of the Appeal:

The primary issue in this case revolves around whether an appeal is maintainable against a clarificatory letter issued by the Assistant Commissioner of Central Excise. The appellant had sought guidance on the availment of Cenvat credit for service tax paid by their associates under the category 'Business Auxiliary Service'. The Assistant Commissioner responded with a letter clarifying the provisions of the Cenvat Credit Rules without raising any demand or adjudicating any dispute. The Commissioner (Appeals) dismissed the appeal, stating that the letter was merely clarificatory and did not constitute an adjudication or a decision adversely affecting the appellant's rights. The Tribunal concurred, emphasizing that for an appeal to be maintainable, there must be an adjudication resulting in a demand for duty or penalty. The Tribunal noted that the letter in question did not determine any rights or obligations of the appellant and was issued in response to their request for clarification. Therefore, the appeal was not maintainable.

2. Requirement of Payment of Appeal Fee:

The second issue concerns whether the appellant was required to pay a fee for filing the appeal under Section 86 of the Finance Act, 1994. The appellant argued that no fee was payable as there was no demand for service tax, interest, or penalty. However, the Tribunal clarified that Section 86(6) mandates the payment of a fee for appeals to the Appellate Tribunal, with the amount depending on the service tax, interest, and penalty involved. The Tribunal highlighted that the amended provision, effective from 1.11.2004, introduced a graded fee structure based on the amounts in question. The Tribunal rejected the appellant's contention, stating that the fee is required irrespective of whether there is a demand, and even if the appeal were maintainable, the appellant would need to pay the minimum fee prescribed by the statute. The Tribunal referred to previous cases where the fee paid by the appellants was deemed sufficient but clarified that these cases did not support the proposition that no fee is payable.

In conclusion, the Tribunal rejected the miscellaneous application and held that the appeal was not maintainable. The Tribunal emphasized that the letter from the Assistant Commissioner was merely clarificatory and did not constitute an adjudication or decision affecting the appellant's rights. The Tribunal also affirmed that the appellant was required to pay the prescribed fee for filing the appeal under Section 86 of the Finance Act, 1994.