Appeal with Commissioner Appeal
As per section 85 of the Finance Act, 1994 as amended, any person who is aggrieved by any decision or order passed by any authority lower in rank to Commissioner can file appeal before the Commissioner (Appeals), having jurisdiction over the authority by whose decision or order person feels aggrieved.
The appeal has to be filed in prescribed Form ST-4 within three months from the date of receipt of the decision or Order of such adjudicating authority, relating to Service Tax, interest or penalty. The appeal should be verified by the person who is authorized to verify. For the purpose of signature on verification provisions of Rule 3 of Central Excise (Appeals) Rules, 2001, may be referred as per which the following persons can sign on verification.
The grounds of appeal and the form of verification as contained in Form No. ST-4 shall be signed,-
(a) in the case of an individual, by the individual himself or where the individual is absent from India, by the individual concerned or by any person duly authorised by him in this behalf; and where the individual is a minor or is mentally incapacitated from attending to his affairs, by his guardian or by any other person competent to act on his behalf;
(b) in the case of a Hindu undivided family, by the Karta and, where the Karta is absent from India or is mentally incapacitated from attending to his affairs, by any other adult member of such family;
(c) in the case of a company or local authority, by the principal officer thereof;
(d) in the case of a firm, by any partner thereof, not being a minor;
(e) in the case of any other association, by any member of the association or the principal officer thereof; and
(f) in the case of any other person, by that person or any person competent to act on his behalf.
The appeal before the Commissioner (Appeals) is to be filed in duplicate, one copy of appeal should be accompanied by certified copy of Order against which appeal is proposed to be filed. One copy of such Order and main copy of appeal should be affixed with necessary Court Fee stamp as prescribed. All the documents which are felt important for the reason that these have not been considered by the lower authority or which are having bearing over the issue in dispute shall be annexed with the appeal petition. The proforma of ST-4 asks for preliminary details like, name, address, details of authority against whose order appeal is preferred etc. With these details, there are two separate headings, viz., “Statement of Facts” and “Grounds of Appeal”. In the “Statement of Facts”, one has to mention the backdrop history regarding “person” who is filing or on whose behalf appeal is being filed, the details of how this decision or order appealed against has come to be made or passed by the concerned authority. In the "Grounds of Appeal”, one has to give the grounds on which one feels that the decision or order made can be challenged. Along with the grounds one can give the decisions of Quasi Judicial or Judicial Forums on the similar issue or drawing ratio from them as can be applied to the issue on hand. One should always request the Commissioner (Appeals) for granting opportunity of personal hearing. As during Personal Hearing, one can easily convince the authority on the arguments being made. The Commissioner (A) is bound to give three opportunities for personal hearing before proceeding to decide the appeal ex-parte.
Pre Deposit to be made:
In case there is any liability created by virtue of decision or order against which appeal is proposed to be filed, the appeal petition is to be accompanied by Application for dispensing with the requirement of pre deposit of duty, interest or penalty, as the case may be. The said application is required to be filed looking to the provisions contained in section 35F of the Central Excise Act, 1944, which has been made applicable to the Service Tax matters. As per the provisions contained in section 35F, any person desirous of filing appeal against any decision or order under which any amount has been determined as Service Tax, interest or penalty, shall pay the same before filing appeal before the Commissioner (Appeals). However, proviso to section 35F states that in exceptional cases where the said authority is of opinion that the deposit of duty demanded or penalty levied would cause undue hardship to such person, such authority, may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue.
Of late this exception has become a rule and the rule has become a exception. The experience has shown that in almost all the cases involving demand for tax (Service Tax), fine, penalty, interest, etc., the provision of exception is invoked and applications are made requesting the Commissioner (Appeals) to dispense with the requirement of pre deposit condition envisaged under section 35F of the Central Excise Act, 1944. However, the discretion is wasted with the Commissioner (Appeals) to decide whether or not in particular case such waiver can be granted, if not, he may impose certain conditions, which are required to be fulfilled by the appellant. Failure to fulfill such condition may entail in the main appeal petition being dismissed by the Commissioner (Appeals).
The guidelines which are required to be kept in mind by the Commissioner (Appeals) while disposing of the application for dispensing with the requirement of pre deposit condition under section 35F ibid are contained in the judgment of the Honorable Supreme Court in the case of Benara Valves Limited as reported in STO 2006 SC 1264 and in the case of Indo Nissan Oxo Chemicals Industries Limited as reported in STO 2007 SC 1447.
The law requires that the Commissioner (Appeals) should decide the application for dispensing with the requirement of pre deposit within one month of its receipt and decide the main petition within six months of filing. However, where the main petition is accompanied by any Miscellaneous Application. The Commissioner (A) would before disposing of the main petition dispose of the Miscellaneous Application, there the said authority may not be able to decide the main petition within six months as prescribed.
Appeal against the order of Commissioner Appeal:
The Order passed by the Commissioner (Appeals) are not final, they are subject to further scrutiny by the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) or before the Honorable High Court or Supreme Court in terms of section 35G or section 35L of the Central Excise Act, 1944, respectively, or directly invoking the right exercising Article 226 of the Constitution of India. The Stay Order passed on the Application for dispensing with the requirement of pre deposit not being final order passed under section 35(A)(2) of the Central Excise Act, 1944, cannot be appealed to CESTAT, however, exercising the rights under Article 226 of the Constitution of India the same can be challenged before the jurisdictional High Court.