Appeals - Service Tax Practice Manual / Ready Reckoner - Service Tax

Appeals A. Appeal to the Commissioner (Appeals) B. Appeal to the Appellate Tribunal (CESTAT) A. Appeal to the Commissioner (Appeals) - Section 85 Who can file an appeal Any person aggrieved by any decision or order passed by an adjudicating authority subordinate to the Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals). Form of Appeal Every appeal shall be in the ST-4 and shall be verified in the prescribed manner. Time Limit for filing an Appeal An appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, relating to service tax, interest or penalty. Mandatory fixed pre-deposit The appellant is required mandatorily to deposit 7.5% of the duty demanded or penalty imposed or both for filing of appeal before the Commissioner (Appeal) or the Tribunal at the first stage, and 10% in second stage appeal before the Tribunal. The amount of pre-deposit would be subject to a ceiling of Rs. 10 Crore. All pending appeals/ stay application would be governed by the statutory provisions prevailing at the time of filing such stay applications/ appeals. Filing of belated Appeal Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month. Powers of the Commissioner (Appeals) The Commissioner of Central Excise (Appeals) shall hear and determine the appeal and, subject to the provisions of this Chapter, pass such orders as he thinks fit and such orders may include an order enhancing the service tax, interest or penalty. Therefore, even in the cases, where appeal has been filed by the assessee, commissioner can enhance the amount of service tax, interest or penalty. However, before making such enhancement, commissioner (Appeals) has to give a reasonable opportunity of showing cause against such enhancement. Application of provision of Central Excise in relation to Appeal Subject to the provisions of this Chapter, in hearing the appeals and making orders under this section, the Commissioner of Central Excise (Appeals) shall exercise the same powers and follow the same procedure as he exercises and follows in hearing the appeals and making orders under the Central Excise Act, 1944. B. Appeal to the Appellate Tribunal (CESTAT) - Section 86 Appeal by an assessee: Any assessee aggrieved by an order listed below may appeal to the Appellate Tribunal (CESTAT) against such order: - - Section 73 - Adjudication order of demand / recovery passed by the Commissioner of Central Excise. - Section 83A - Adjudication order of Penalty passed by the Commissioner of Central Excise. - Section 85 - Order of the Commissioner of Central Excise (Appeals) Appeal by the assessee shall be made in ST-5 form and in quadruplicate. Appeal by the Revenue Department against the order of the Commissioner of Central Excise The Board may, by order, constitute such committee as may be necessary for this chapter and such committee shall consist two Chief Commissioners of Central Excise or two Commissioners of Central Excise as the case may be. The Committee of Chief Commissioner of Central Excise may, if it objects to any order passed by the Commissioner of Central Excise under section 73 or section 83A , direct the Commissioner of Central Excise to appeal to the Appellate Tribunal against the order. Therefore, the commissioner of central excise cannot file an appeal on its own against the order of himself. Before filing an appeal against own order, commissioner of Central Excise has to get the direction from the Board. [In case of matter related to rebate of service tax as passed by the CIT(A), the tribunal has the same powers as given in Section 35EE of the Central Excise Act.] Inserted vide THE FINANCE ACT, 2015 w.e.f. 14th May 2015 Appeal by the department shall be made in ST-7 form and in quadruplicate. Appeal by the Revenue Department against the order of the Commissioner of Central Excise (Appeals) The Committee of Commissioner of Central Excise may, if it objects to any order passed by the Commissioner of Central Excise (Appeals) under section 85 , direct any Central Excise officer to appeal to the Appellate Tribunal against the Appeal by the department shall be made in ST-7 form and in quadruplicate. Time Limit for filing Appeal before CESTAT Every appeal shall be filed within three months of the date on which the order sought to be appealed against is received by the assessee. However appeal shall be filed within four months from the receipt of order by the Committee of Chief Commissioner or Committee of Commissioners as the case may be. Filing of a memorandum of cross-objection The Commissioner of Central Excise or any Central Excise Officer subordinate to him or the assessee, as the case may be, on receipt of a notice that an appeal against the order of the Commissioner of Central Excise or the Commissioner of Central Excise (Appeals), by the other party may, notwithstanding that he may not have appealed against such order or any part thereof, file a memorandum of cross-objections, verified in the prescribed manner, against any part of the order of the Commissioner of Central Excise or the Commissioner of Central Excise (Appeals). Such memorandum in Form ST-6 shall be filed within 45 days from the date of receipt of notice. Admission of Belated Appeal / Memorandum of Cross-objections The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period if it is satisfied that there was sufficient cause for not presenting it within that period. Fees for Appeal An appeal to the Appellate Tribunal shall be accompanied by a fee of,- Amount of Service Tax and Interest Demanded and Penalty levied Amount of fees Less than or equal to Rs. 5 lakhs Rs. 1000/- More than Rs. 5 lakhs but not exceeding Rs. 50 lakhs Rs. 5,000/- Above Rs. 50 lakhs Rs. 10,000/- However, no fee shall be payable in the case of an appeal filed by the department. And, no fee shall be payable for a memorandum of cross-objections. Fees for other matter other than service tax / interest and penalty Appeal matter Amount of fees Appeal for rectification of mistake Rs. 500/- For restoration of appeal Rs. 500/- For restoration of application Rs. 500/- For any other purpose Rs. 500/- However, no fee shall be payable in the case of an appeal filed by the department. And, no fee shall be payable for a memorandum of cross-objections. Applicability of Provisions of Central Excise in relation to appeal to CESTAT Subject to the provisions of this Chapter, in hearing the appeals and making orders under this section, the Appellate Tribunal shall exercise the same powers and follow the same procedure as it exercises and follows in hearing the appeals and making orders under the Central Excise Act, 1944 .