CROSS OBJECTION IS NOT AN APPEAL

[Mr. M. GOVINDARAJAN]

Section 35B of the Central Excise Act, 1944 deals with filing appeal before the CESTAT. Section 35B(1) provides that any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order-

(a) a decision or order passed by the Commissioner of Central Excise as an adjudicating authority;

(b) an order passed by the Commissioner (Appeals) under section 35A;

Every appeal under this section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the Commissioner of Central Excise, or, as the case may be, the other party preferring the appeal.

On receipt of notice that an appeal has been preferred under this section, the party against whom the appeal has been preferred may, notwithstanding that he may not have appealed against such order or any part thereof, 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.

Section 35B provides for the assessee to file cross objections on the appeal filed by the department even though he does not file appeal against the order.   But the same may not be taken as appeal.   If the assessee does not file appeal against the order of the Adjudicating Authority filing cross objections would not amount to appeal. But there is no provision for filing cross objections before Commissioner (Appeals).

In ‘Devi Chand V. Commissioner of Central Excise, Lucknow’ 2013 (5) TMI 512 - CESTAT NEW DELHI proceedings were initiated against the appellant raising service tax of Rs. 2,94,618/-. The Adjudicating Authority confirmed a demand of Rs. 2,33,782/- and dropped the balance amount of Rs. 60,836/- The Department filed an appeal against the order of adjudicating authority before the Commissioner (Appeals). In the appeal the department challenged the dropping of the demand by the Adjudicating Authority.

The Commissioner (Appeals) allowed the appeal filed by the department.   The appellant did not file any appeal against the confirmed demand of Rs. 2,33,782/- But he filed cross objections after the expiry of the normal period of limitation before the Commissioner (Appeals) who has not dealt with the cross objections filed by the appellant.

The appellant filed the present appeal before the Tribunal.   The assessee contended that the cross objections filed before the Commissioner (Appeals) should have been treated as an appeal filed by him and it should be decided by the Commissioner (Appeals).   The Department contended that-

• The appellant has not filed any appeal against the order of Adjudicating authority confirming the demand;
• If they were aggrieved with the same they should have challenged the same before the Commissioner (Appeals) by way of filing a separate appeal within the period of limitation;
• Filing of cross objections before Commissioner (Appeals) cannot take the place of filing statutory appeal;
• The confirmation of demand to the extent of Rs. 2,33,782/- has attained finality and the appellant should be directed to pay the same.
  

The Tribunal agreed with the arguments of the department. The appellant is not able to show provisions of law indicating that cross objection can be filed before Commissioner (Appeals) in lieu of statutory appeal.   If such cross objections are held to be appeals filed before Commissioner (Appeals), the period of limitation prescribed under law would get circumvented and as such the Tribunal is of the prima facie view that cross objection cannot be held to be appeal.   Since the appellant did not file appeal against the confirmed demand, it attains finality.   The Tribunal directed the appellants to deposit the confirmed demand of service tax.