Whether an opinion delivered by the department is an order for the purpose of filing an appeal

Whether an opinion delivered by the department is an order for the purpose of filing an appeal " 

Some times, an assessee seeks clarification from the department against doubtful matters. Though rare but some times department gives its opinion in favor of assessee. 

 Now a question of million arises that whether the opinion given by the department officers is an appeal able order and assessee is allowed to file an appeal before the honorable tribunal u/s 86. 

In the instant matter the assessee has sought an opinion from the department in 2002 on issue of taxability of "International Freight" within the category of "Courier Agency". 

In his opinion, commissioner (appeals) has said that the activity "International Freight" is not taxable. This opinion was delivered in 2004. 

Later in January 2006, department has communicated to the assessee that the opinion delivered as above was not in accordance with law and hence null and void ab-initio. 

The assesse as filed an appeal against the communication of the department.  

See: TNT INDIA PRIVATE LTD Versus COMMISSIONER OF SERVICE TAX, BANGALORE 2007 -TMI - 1018 - CESTAT, BANGALORE [Service tax Section]  

On behalf of the Revenue, it was stated that under Section 86 of the Finance Act, 1994, an appeal can be filed if a person is aggrieved by the order/decision passed/made by the Commissioner as an Adjudicating Authority. The letter dated 9-1-2006 was not issued by the Commissioner as an Adjudicating Authority. It was a mere letter communicating to the assessee that their service is liable to Service Tax in view of the Board's Circular F. No. 341/43/96/TRU dated 31-10-1996. Hence, the appeal is not maintainable. 

The Bangalore bench of honorable tribunal (CESTAT) has held that, the communication of the department in the year 2004 and 2006 are in the nature of assessment and appeal is maintainable against these communications.