AMENDMENT IN APPELLATE PROVISIONS

[Dr. Sanjiv Agarwal]

Amendments made by Finance Act, 2015 (w.e.f. 14.05.2015)

Finance Act, 2015 has made the following two amendments in section 86(1):

1. The words 'any assessee' have been substituted with the words 'save as otherwise provided herein, an assessee' and,
2. Following two provisos have been inserted -

“Provided that where an order, relating to a service which is exported, has been passed under section 85 and the matter relates to grant of rebate of service tax on input services, or rebate of duty paid on inputs, used in providing such service, such order shall be dealt with in accordance with the provisions of section 35EE of the Central Excise Act, 1944:

Provided further that all appeals filed before the Appellate Tribunal in respect of matters covered under the first proviso, after the coming into force of the Finance Act, 2012, and pending before it up to the date on which the Finance Bill, 2015 receives the assent of the President, shall be transferred and dealt with in accordance with the provisions of section 35EE of the Central Excise Act, 1944.”

Statement of objects and reasons to the Finance Bill, 2015 states the objective of this amendment as – 'Clause 115 of the Bill seeks to amend section 86 of 1994 Act so as to insert a proviso therein to provide that the cases specified thereunder shall be dealt in accordance with the provisions of section 35EE of Central Excise Act.'

Section 86 has been amended to prescribe that remedy against the order passed by Commissioner (Appeal), in a matter involving rebate of Service Tax, shall lie in terms of section 35EE of the Central Excise Act. It is also been provided that all appeals filed in Tribunal after the date the Finance Act, 2012 came into effect and pending on the date when the Finance Bill, 2015 receives assent of the President shall be transferred and dealt in accordance with section 35EE of the Central Excise Act.

Effect of Amendments

These amendments shall have the following effect w.e.f. 14.05.2015–

1. The remedy of appeal to Tribunal u/s 86 is not available in every case as it has now been provided subject to the saving clause 'save as otherwise provided herein'. The provisos added provide that saving. Thus, scope of section 86 has been curtailed.
2. Any appeal against the order of Commissioner (Appeal) in relation to matters concerning rebate of Service Tax (e.g. exports) shall be governed in terms of section 35EE of Central Excise Act, 1944.
3. This appellate remedy would cover only orders passed u/s 85 of the Finance Act, 1994, i.e. orders passed by Commissioner (Appeals). What would happen to cases adjudicated by the Executive Commissioner (Adjudication) has not been provided for.
4. Orders u/s 85 relating to export of services covering the specified matters, i.e.,

1. Grant of rebate of Service Tax on input services
2. Rebate of duty paid on inputs

used in provision of such exported service, shall be dealt with as per section 35EE of Central Excise Act, 1944.

5. Such appeals as filed before Appellate Tribunal between 1.7.2012 and date of enactment of Finance Act, 2015(14.05.2015) and pending before Tribunal as on date of enactment of Finance Act, 2015(14.05.2015) shall be transferred to and dealt with as per section 35EE of Central Excise Act, 1944, i.e., Tribunal will not deal with appeals of rebate as stipulated above any more from the date of enactment of Finance Act, 2015 (14.05.2015).

section 35EE of Central Excise Act, 1944 provides for revision by Central Government. Application in such cases shall be made to Central Government within three months from the date of communication to the applicant of the order against which the application in made. The said period can be further extended by three months if Government is satisfied that the applicant was prevented by sufficient cause from presenting the application within stipulated period.

Central Government can also on its own motion, annul or modify any order.

Discussions to this article

[vasudevan unnikrishnan]

The new amendment has become detrimental to the Exporters.Now all the exporters all over India will have to go to Delhi,to pursue their righteous claim,denied by the Commissioner(Appeals).Being more a revenue officer than an appellate authority,invariably ,the decisions taken are pro revenue only.In fact the amendment should have been to decentralise all other functions of Revisionary authority also to the CESTAT.The revisionary authority is only another officer of the same rank as the Commissioner(Appeals) only and thus how can such a scheme of second appeal/Review be justified.In the old days,when the Appeals were being heard and decided by lower level officers(pre 1980),the system of Revision by the Joint Secretary level officer was introduced and the same continues even now,though the appeals are now heard by Commissioner,in the Joint Secretary level.At any rate,insisting all aggrieved to approach Delhi is to be stated, with due respect, as a highly retrogade amendment,which would call for a review/revision.