Ghaziabad service tax presentation 8-7-2012

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Certificate Course on Indirect TaxesCertificate Course on Indirect Taxes

Appellate Procedures, Advance Ruling & Settlement Appellate Procedures, Advance Ruling & Settlement under under

Service Tax LawService Tax Law

Organized ByOrganized By A Presentation By A Presentation By The Institute of Chartered Accountants of India Dr. Sanjiv AgarwalThe Institute of Chartered Accountants of India Dr. Sanjiv Agarwal@ Ghaziabad@ Ghaziabad .. FCA, FCS, FCA, FCS, 88thth July, 2012 July, 2012 Jaipur Jaipur

© Dr. Sanjiv Agarwal© Dr. Sanjiv Agarwal

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Certificate Course on Indirect TaxesCertificate Course on Indirect Taxes

This Presentation coversThis Presentation covers

Appellate ProceduresAppellate Procedures Advance RulingsAdvance Rulings Settlement Provisions Settlement Provisions

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AppealAppeal

What is Appeal What is Appeal No absolutely fixed and definite meaning No absolutely fixed and definite meaning Creature of statute, not a fundamental right Creature of statute, not a fundamental right Appeal is-Appeal is-

• Complaint or a petition Complaint or a petition • to a superior court or authority to a superior court or authority • against an order / judgment / injustice / error against an order / judgment / injustice / error • done by a competent court or authority of a lower authority done by a competent court or authority of a lower authority • with a request / prayer with a request / prayer • seeking to remove seeking to remove • grievance / injustice done by such lower authority grievance / injustice done by such lower authority • involving reconsideration or review involving reconsideration or review • of facts or law or both.of facts or law or both.

Continuation of original proceedings and power of first appellate authority Continuation of original proceedings and power of first appellate authority are co- extensive with those of original authority are co- extensive with those of original authority [Hastmatrai v. [Hastmatrai v. Raghunath Prasad AIR (1981) SC 1711]Raghunath Prasad AIR (1981) SC 1711]

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Appeal before Commissioner (Appeals)Appeal before Commissioner (Appeals)

Commissioner (Appeals) is a Commissioner (Appeals) is a Quasi Quasi (as if judicial, analogous (as if judicial, analogous to) Judicial Authority to) Judicial Authority

By Department (Section 84) (w.e.f. 19.8.2009)By Department (Section 84) (w.e.f. 19.8.2009)

By Assessee /Aggrieved person (Section 85)By Assessee /Aggrieved person (Section 85)

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Appeal u/s 84Appeal u/s 84

Prior to 19.8.2009, Commissioner had power to review orders Prior to 19.8.2009, Commissioner had power to review orders Commissioner can satisfy himself about legality/ propriety of any order Commissioner can satisfy himself about legality/ propriety of any order

passed by subordinate adjudicating authority passed by subordinate adjudicating authority Direct such authority to apply to Commissioner (Appeal) by an order.Direct such authority to apply to Commissioner (Appeal) by an order. Order giving such direction to be issued within 3 months of date of Order giving such direction to be issued within 3 months of date of

communication of order of adjudicating authority communication of order of adjudicating authority Adjudicating authority to apply within one month to Commissioner Adjudicating authority to apply within one month to Commissioner

(Appeal)(Appeal) Such application to be considered as appeal.Such application to be considered as appeal.

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Appeal u/s 85Appeal u/s 85

Who can appealWho can appeal - - Any person aggrieved, other than revenueAny person aggrieved, other than revenue (somebody affected) (somebody affected)

Against whatAgainst what - - Any decision or order passedAny decision or order passed

Against which orderAgainst which order - - Orders passed by adjudicating authority subordinateOrders passed by adjudicating authority subordinate to Commissioner (Appeals) [ Assistant / Deputy/ to Commissioner (Appeals) [ Assistant / Deputy/ Joint/ Additional Commissioner]Joint/ Additional Commissioner]

Date of filingDate of filing - - Date on which papers are received by the office of Date on which papers are received by the office of CCE(A). Date of posting or signing is not relevantCCE(A). Date of posting or signing is not relevant

Appeal u/s 85 only to Commissioner (Appeal) and not to Tribunal Appeal u/s 85 only to Commissioner (Appeal) and not to Tribunal

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Decision / order appealed against must relate to following Decision / order appealed against must relate to following under Chapter Vunder Chapter V Service TaxService Tax InterestInterest Penalty Penalty

Such order could be in relation toSuch order could be in relation to Assessment order u/s 73Assessment order u/s 73 Denying of refundDenying of refund Limitation periodLimitation period Imposing penalty under various Sections viz, sections 76,77 or 78Imposing penalty under various Sections viz, sections 76,77 or 78

Independent conclusion, not bound by CBEC instructions Independent conclusion, not bound by CBEC instructions

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Form of Appeal Form of Appeal • Appeals to be made as per prescribed rules (Rule 8)Appeals to be made as per prescribed rules (Rule 8)• No fee payable at first appeal stageNo fee payable at first appeal stage• Prescribed form – Form No ST.4Prescribed form – Form No ST.4• To be filed in duplicate To be filed in duplicate • Accompanied by copy of order appealed againstAccompanied by copy of order appealed against

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Filling Form Service Tax 4 Filling Form Service Tax 4 Mandatory HintsMandatory Hints To be filed in duplicate To be filed in duplicate Accompanied by order of adjudicating authority being appealed (original Accompanied by order of adjudicating authority being appealed (original

or attested copy) or attested copy) Form to be verified in prescribed manner Form to be verified in prescribed manner To be accompanied by statement of facts and grounds of appeal To be accompanied by statement of facts and grounds of appeal To be signed by appellant or his authorized representative.To be signed by appellant or his authorized representative. To be dated To be dated Other points to be considered Other points to be considered Attach power of attorney Attach power of attorney Prepare a index of papers / documents submittedPrepare a index of papers / documents submitted Number the pages annexed.Number the pages annexed. List out cases referred to / relied upon List out cases referred to / relied upon

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FORM ST-4FORM ST-4Under Section 85 of the Finance Act, 1994 (32 of 1994)Under Section 85 of the Finance Act, 1994 (32 of 1994)

Form of Appeal to the Commissioner of Central Excise (Appeals)Form of Appeal to the Commissioner of Central Excise (Appeals)1.1. No.No. ofof 20 ...............20 ...............2. Name and address of the appellant.2. Name and address of the appellant.3. Designation and address of the officer passing the decision or order 3. Designation and address of the officer passing the decision or order appealed appealed

against and the date of decision or order.against and the date of decision or order.4. Date of communication of the decision or order appealed against to the appellant.4. Date of communication of the decision or order appealed against to the appellant.5. Address to which notice may be sent to appellant.5. Address to which notice may be sent to appellant.5(A) (i) Period of dispute5(A) (i) Period of dispute(ii) Amount of service tax, if any. demanded for the period mentioned in Col. (i).(ii) Amount of service tax, if any. demanded for the period mentioned in Col. (i).(iii) Amount of refund. if any. claimed for the period mentioned in Col. (i)(iii) Amount of refund. if any. claimed for the period mentioned in Col. (i)(iv) Amount of interest(iv) Amount of interest(v) Amount of penalty(v) Amount of penalty(vi) Value of the taxable service for the period mentioned in Co!. (i).(vi) Value of the taxable service for the period mentioned in Co!. (i).

Cont…..Cont…..

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6. Whether service tax or penalty or interest or all the three have been deposited?6. Whether service tax or penalty or interest or all the three have been deposited?6(A) Whether the appellant wishes to be heard in person?6(A) Whether the appellant wishes to be heard in person?7. Refund claimed in appeal.7. Refund claimed in appeal.

Statements of FactsStatements of FactsGrounds of AppealGrounds of Appeal

Signature of the authorisedSignature of the authorised Signature of the appellant Signature of the appellant representative, if anyrepresentative, if any appellant appellant

VerificationVerificationI,------------------------------------------------------------- the appellant, do hereby declare that what is I,------------------------------------------------------------- the appellant, do hereby declare that what is stated above is true to the best of my information and belief. stated above is true to the best of my information and belief. verified today, the --------------------day of ---------------------verified today, the --------------------day of ---------------------Place :Place :Date :Date :Signature of the authorisedSignature of the authorised Signature of the appellant Signature of the appellant Representative, if anyRepresentative, if any or his authorised representative or his authorised representative

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Steps involved in Appeal Steps involved in Appeal Study order -in -original passed by adjudicating authority Study order -in -original passed by adjudicating authority

Amount Amount Issues involved – classification / valuation etc. Issues involved – classification / valuation etc. Limitation Limitation Penalties Penalties Specific issues – export / import etc.Specific issues – export / import etc.

Examine the background Examine the background Revenue intelligenceRevenue intelligenceInvestigation / search Investigation / search Audit parasAudit parasShow cause notice (SCN)Show cause notice (SCN)Reply to SCN Reply to SCN

Cont…….Cont…….

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Prepare a broad sketch / strategy for appeal Prepare a broad sketch / strategy for appeal Chronology of events / important dates Chronology of events / important dates Legal issues / interpretation involved Legal issues / interpretation involved Prepare Prepare

Statement of facts Statement of facts Grounds of appeal Grounds of appeal

Complete Form S T-4 (no fee for first appeal) Complete Form S T-4 (no fee for first appeal) File full set of papers / documents File full set of papers / documents Stay applicationStay application Personal hearing Personal hearing Evidences / written submissions Evidences / written submissions Order Order

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Statement of Facts Statement of Facts Identify important facts of case assessee Identify important facts of case assessee Arrange them in chronological order of happening Arrange them in chronological order of happening Highlight only relevant points Highlight only relevant points

Name, address, type of assesseeName, address, type of assessee Registration details Registration details Taxable services covered Taxable services covered Nature of services / activities undertakenNature of services / activities undertaken Background of order in original Background of order in original

o Audit Audit o Investigation Investigation o Revenue intelligence Revenue intelligence o SCN SCN

Reply to SCN – brief points Reply to SCN – brief points Order in original - brief points (whether principle of natural justice followed, evidences Order in original - brief points (whether principle of natural justice followed, evidences

considered, speaking order etc) considered, speaking order etc) Reasons for appeal Reasons for appeal

Annexures / work sheets Annexures / work sheets

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Grounds of AppealGrounds of Appeal

Contains various grounds for appeal filing Contains various grounds for appeal filing Lists issues on which order is being contested Lists issues on which order is being contested Particulars of order by which person is aggrieved Particulars of order by which person is aggrieved Issues where relied upon facts are factually incorrect Issues where relied upon facts are factually incorrect Issues where wrong classification has been done Issues where wrong classification has been done Issues where incorrect valuation is determined Issues where incorrect valuation is determined Issues involving legal interpretation and appellant / CCE not accepting the same Issues involving legal interpretation and appellant / CCE not accepting the same Areas where adjudicating authority has erred in facts / law Areas where adjudicating authority has erred in facts / law Adjudicating authority has not been just and fair Adjudicating authority has not been just and fair Reasonable opportunity not given (principles of natural justice not followed) Reasonable opportunity not given (principles of natural justice not followed) Speaking order / reasoned order not in placeSpeaking order / reasoned order not in place Judicial discipline not observed Judicial discipline not observed Precedents Precedents

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Time Period for Appeal Time Period for Appeal

Prior to 28.5.2012Prior to 28.5.2012 (sub-section 3)(sub-section 3) To appeal within there months from date of communication of order To appeal within there months from date of communication of order

appealed against appealed against

Period of 3 months can be extended by further 3 months (total 6 Period of 3 months can be extended by further 3 months (total 6 months) by Commissioner (Appeals)months) by Commissioner (Appeals)

Condonation of delay/ extension beyond 3 months is beyond the power Condonation of delay/ extension beyond 3 months is beyond the power of Commissioner (Appeal)of Commissioner (Appeal)

to be contd……….to be contd……….

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w.e.f. 28.5.2012 (sub-section 3A)w.e.f. 28.5.2012 (sub-section 3A)

To appeal within two months from date of communication of order To appeal within two months from date of communication of order

passed after 28.05.2012 passed after 28.05.2012

Period of 2 months can be extended by further 1 month (total 3 Period of 2 months can be extended by further 1 month (total 3 months) by Commissioner (Appeals)months) by Commissioner (Appeals)

Condonation of delay/ extension beyond 1 month is beyond the power Condonation of delay/ extension beyond 1 month is beyond the power of Commissioner (Appeal)of Commissioner (Appeal)

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Extension up to 3 months (1 month w.e.f. 28.5.2012) will be Extension up to 3 months (1 month w.e.f. 28.5.2012) will be allowed only if Commissioner (Appeals) is satisfied about allowed only if Commissioner (Appeals) is satisfied about appellant being prevented by sufficient cause from presenting appellant being prevented by sufficient cause from presenting the appeal within 3 months (2 months w.e.f. 28.5.2012) the appeal within 3 months (2 months w.e.f. 28.5.2012) ( condonation of delay )( condonation of delay )

Sufficient cause would depend upon circumstances of each Sufficient cause would depend upon circumstances of each case / merit.case / merit.

Sufficient cause :Some thing adequate or enough- can not be a Sufficient cause :Some thing adequate or enough- can not be a straight jacket formula for accepting/ rejecting the explanation.straight jacket formula for accepting/ rejecting the explanation.

(contd..)(contd..)

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• Condonation of delay has to be sought Condonation of delay has to be sought with clean hands and mentioning with clean hands and mentioning correct facts correct facts [Singh Enterprises v CCE (2008) 221 ELT 163 (SC); Bhilwara Zila Ex [Singh Enterprises v CCE (2008) 221 ELT 163 (SC); Bhilwara Zila Ex Service ……v Dy CCE, Bhilwara (2011) 24 STR 651 (Raj)].Service ……v Dy CCE, Bhilwara (2011) 24 STR 651 (Raj)].

• Service of copy of order to advocate being a mandatory requirement of natural Service of copy of order to advocate being a mandatory requirement of natural justice, its non compliance resulted on 260 days condonation of delay. justice, its non compliance resulted on 260 days condonation of delay. QualityQuality Constructions v CST, Bangalore (2011) 201 STR 713 (Cestat, Bangalore )].Constructions v CST, Bangalore (2011) 201 STR 713 (Cestat, Bangalore )].

• No power to condone delay beyond 3 months [No power to condone delay beyond 3 months [Sr. Suptd. of Post Office v. Union of Sr. Suptd. of Post Office v. Union of India (2012) 34 STT 84 (Gujarat); Director of Mines & Geology v. CCE (Appeal) India (2012) 34 STT 84 (Gujarat); Director of Mines & Geology v. CCE (Appeal) (2012) 34 STT 203 (Karnataka)](2012) 34 STT 203 (Karnataka)]

• Section 85 overrides provisions of Limitation Act 1963 in view of specific Section 85 overrides provisions of Limitation Act 1963 in view of specific provision of 3 months.provision of 3 months.

• Section 86 does not contain any express provisions for condoning delay and as Section 86 does not contain any express provisions for condoning delay and as such section 5 of Limitation Act would apply.such section 5 of Limitation Act would apply.

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Condonation of Delay AllowedCondonation of Delay Allowed

++ Delay (within condonable limit ) not condoned by Commissioner Delay (within condonable limit ) not condoned by Commissioner (Appeals) holding poor health not a sufficient cause. Tribunal held the (Appeals) holding poor health not a sufficient cause. Tribunal held the reasons of proprietress being pregnant as sufficient cause and delay reasons of proprietress being pregnant as sufficient cause and delay condoned.condoned.[Bobby Tours & Travels Pvt Ltd v CCE (Appeals) Jalandhar (2011) 24 Bobby Tours & Travels Pvt Ltd v CCE (Appeals) Jalandhar (2011) 24 STR 371 (Cestat, New Delhi)].STR 371 (Cestat, New Delhi)].

++ Marginal delay of 2-20 days could have been condoned on existence of Marginal delay of 2-20 days could have been condoned on existence of sufficient reasons [sufficient reasons [Hindustan Zinc Ltd v CCE (Appeals), Visakhapatnam Hindustan Zinc Ltd v CCE (Appeals), Visakhapatnam (2006) 199 ELT 360 (Cestat, Bangalore)].(2006) 199 ELT 360 (Cestat, Bangalore)].

++ Delay of 2 days not to be held against substantive right of appellant to file Delay of 2 days not to be held against substantive right of appellant to file appeal [ appeal [ Birla Corporation Ltd v CCE, Bhopal (2007) 8 STJ 399 (Cestat, Birla Corporation Ltd v CCE, Bhopal (2007) 8 STJ 399 (Cestat, New Delhi] New Delhi]

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Appeal before Commissioner (Appeals)Appeal before Commissioner (Appeals)++ Delay to be condoned only if there is good case for the delay Delay to be condoned only if there is good case for the delay [Hindustan Devdut Tools Ltd. v. Union of [Hindustan Devdut Tools Ltd. v. Union of

India (1981) ELT 13 (Delhi)]India (1981) ELT 13 (Delhi)]

++ Refusal to admit appeal on the ground that it is barred by limitation is appealable Refusal to admit appeal on the ground that it is barred by limitation is appealable

++ For limitation, time taken for obtaining certified copy to be excluded For limitation, time taken for obtaining certified copy to be excluded

++ Time taken by court in winding up process held to be a sufficient cause Time taken by court in winding up process held to be a sufficient cause

++ ‘Sufficient cause’ must receive a liberal construction and justice oriented approach so as to advance ‘Sufficient cause’ must receive a liberal construction and justice oriented approach so as to advance substantial justice. Generally delay to be condoned in interest of justice where no gross negligence or substantial justice. Generally delay to be condoned in interest of justice where no gross negligence or deliberate inaction is not found – deliberate inaction is not found – (2007) 11 STJ 186 (Madras) (2007) 11 STJ 186 (Madras)

++ Delay of 30 days condoned on account of appellant’s sicknessDelay of 30 days condoned on account of appellant’s sickness

++ Delay due to change of standing counsel condonable by tribunal Delay due to change of standing counsel condonable by tribunal [CCE v. Rajendra Narain (2012) 281 ELT [CCE v. Rajendra Narain (2012) 281 ELT 38 (Delhi)]38 (Delhi)]

++ Failure of consultant should not result in denying to appellant remeady of hearing when delay was of only Failure of consultant should not result in denying to appellant remeady of hearing when delay was of only 30 days and Tribunal had powers to condone – 30 days and Tribunal had powers to condone – Shaiekh Shahnawaz Ali v. CCE (2012) 26 STR 490 Shaiekh Shahnawaz Ali v. CCE (2012) 26 STR 490 (Bombay) (Bombay)

2222


++ Delay of 26 days condoned when officer left the organization without handing over papers. Delay of 26 days condoned when officer left the organization without handing over papers.

++ Delay of 130 days not condoned by CCE (A) in appeal filed by revenue but condoned by Cestat so as to Delay of 130 days not condoned by CCE (A) in appeal filed by revenue but condoned by Cestat so as to afford opportunity to petitioner government to pursue appeal. afford opportunity to petitioner government to pursue appeal.

Condonation Denied Condonation Denied __ Application not disclosing number of days delay; no cogent reason given for delay ; reasons given for Application not disclosing number of days delay; no cogent reason given for delay ; reasons given for

delay flimsy – Delay not condoned by Tribunal [delay flimsy – Delay not condoned by Tribunal [CST, Delhi v. Gautam Auto (2011) 24 STR 314 (Cestat, CST, Delhi v. Gautam Auto (2011) 24 STR 314 (Cestat, Delhi)]Delhi)]

__ Closure of factory, lack of experience, order given to consultant etc not sufficient cause [Closure of factory, lack of experience, order given to consultant etc not sufficient cause [ Singh Enterprises Singh Enterprises Ltd. v. CCE (2008) 121 ELT 163 (SC)]Ltd. v. CCE (2008) 121 ELT 163 (SC)]

__ Inefficiency in organization (lower staff not informing) is not a sufficient cause. Inefficiency in organization (lower staff not informing) is not a sufficient cause.

__ Delay of 10 months for the reason of incorrect advise by consultant not condoned Delay of 10 months for the reason of incorrect advise by consultant not condoned [Space Exim Pvt. Ltd v [Space Exim Pvt. Ltd v CCE Rajkot (2010) 25 STR 60 (Cestat, A’bad)].CCE Rajkot (2010) 25 STR 60 (Cestat, A’bad)].

__ Service on daughter in law in same address is a proper service, delay not condoned- Service on daughter in law in same address is a proper service, delay not condoned- [Dhan Lashmi Steels v [Dhan Lashmi Steels v Cestat, Chennai (2012) 25 STR 126 (Madras)]Cestat, Chennai (2012) 25 STR 126 (Madras)]

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Hearing / Order Hearing / Order Commissioner (Appeal ) to hear the appeals, determine the Commissioner (Appeal ) to hear the appeals, determine the

appeal and pass orders, as he thinks fitappeal and pass orders, as he thinks fit Hearing is a statutory right – can not be denied Hearing is a statutory right – can not be denied

Order includes order enhancing the amount of service tax / Order includes order enhancing the amount of service tax / interest / penalty interest / penalty

Service tax/ interest/ penalty to be enhanced only after Service tax/ interest/ penalty to be enhanced only after provision of reasonable opportunity of showing cause against provision of reasonable opportunity of showing cause against proposed enhancementproposed enhancement

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Remand by Commissioner (Appeal)Remand by Commissioner (Appeal) Section 35A (3)- Central Excise Act, 1944Section 35A (3)- Central Excise Act, 1944 CCE (A) has no powers to remand cases for fresh adjudication toCCE (A) has no powers to remand cases for fresh adjudication to

original adjudication authority ( withdrawn in 2010) original adjudication authority ( withdrawn in 2010) CCE (A) to-CCE (A) to-

-- make further enquiry, as may be necessary make further enquiry, as may be necessary

-- pass such order pass such order

-- as he thinks just and properas he thinks just and proper Confirming Confirming Modifying Modifying Annulling Annulling

the original order / decision the original order / decision

Cont……Cont……

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CCE (A) continues to exercise power of adjudicating authority in assessment matters- CCE (A) continues to exercise power of adjudicating authority in assessment matters- order treated as order of assessment order treated as order of assessment [MIL India Ltd (2007) 210 ELT 188 (SC); Enkay [MIL India Ltd (2007) 210 ELT 188 (SC); Enkay (India) Rubber Co Pvt Ltd; CCE Jallandhar v B.C. Kataria (2008) 221 ELT 508 ( P (India) Rubber Co Pvt Ltd; CCE Jallandhar v B.C. Kataria (2008) 221 ELT 508 ( P & H)]& H)]

CBEC Circular No 275 /34/2006-CX 8 A dated 25.7.2008 and 21.8.2010CBEC Circular No 275 /34/2006-CX 8 A dated 25.7.2008 and 21.8.2010

CCE (A) to exercise same proves and follow same procedure as he exercises in CCE (A) to exercise same proves and follow same procedure as he exercises in hearing appeals [section 85(5)] Remand Order dismissed hearing appeals [section 85(5)] Remand Order dismissed [CST Kolkatta v Bahubali [CST Kolkatta v Bahubali International Ltd (2011) 24 STR 473 (Cestat, Kolkata ); CCE v Automotive International Ltd (2011) 24 STR 473 (Cestat, Kolkata ); CCE v Automotive Manufacture Pvt Ltd (2012) 25 STR 70 (Cestat, Mumbai)]Manufacture Pvt Ltd (2012) 25 STR 70 (Cestat, Mumbai)]

Circular No 275 /34/2006-CX 8A dated 18.2.2010-CCE (A) divested of power to Circular No 275 /34/2006-CX 8A dated 18.2.2010-CCE (A) divested of power to remand case back to adjudicating authority in terms of section 35A (3) of Central remand case back to adjudicating authority in terms of section 35A (3) of Central Excise Act.Excise Act.

Remand by CCE (A) justified when adjudicating authority violated principles of Remand by CCE (A) justified when adjudicating authority violated principles of natural justice and assessee not given opportunity of SCN reply and hearing [CST natural justice and assessee not given opportunity of SCN reply and hearing [CST Delhi v World Vision (2011) 24 STR 650 (Delhi)].Delhi v World Vision (2011) 24 STR 650 (Delhi)].

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AppealAppeal

New Plea in AppealNew Plea in Appeal New ground / plea at hearing stage generally not allowed.New ground / plea at hearing stage generally not allowed. The High Courts, being the second appellate authority, generally do not allow new The High Courts, being the second appellate authority, generally do not allow new

plea to be raised before the High Courts and have rejected the same. In the High plea to be raised before the High Courts and have rejected the same. In the High Court, only question of law is decided. As such, new plea is not allowed before the Court, only question of law is decided. As such, new plea is not allowed before the High Court.High Court.

The Tribunals have held that question of law, as a new plea, can be raised at any The Tribunals have held that question of law, as a new plea, can be raised at any stage of appeal and allowed new plea on such ground.stage of appeal and allowed new plea on such ground.

The stand of the Department for raising new plea for changing the category of The stand of the Department for raising new plea for changing the category of service is not allowed by the Tribunal.service is not allowed by the Tribunal.

New plea cannot be raised in the revisionary proceedings.New plea cannot be raised in the revisionary proceedings. If new plea is admitted, the other party should be given a reasonable opportunity of If new plea is admitted, the other party should be given a reasonable opportunity of

being heard.being heard. If new plea is admitted, the Tribunal generally remands the matter back to the If new plea is admitted, the Tribunal generally remands the matter back to the

lower authority for deciding the case afresh after taking into consideration the new lower authority for deciding the case afresh after taking into consideration the new issues raised before it, if any.issues raised before it, if any.

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AppealAppeal

Interpretation Issues Interpretation Issues Settled law on interpretation of scope of taxing – constitutional power under article Settled law on interpretation of scope of taxing – constitutional power under article

246.246.

Tax is on event of taxation or object Tax is on event of taxation or object

Nature of tax levied (subject of tax) is different from measure of tax.Nature of tax levied (subject of tax) is different from measure of tax.

Beneficial provision is to be interpreted and applied liberally but within the scope Beneficial provision is to be interpreted and applied liberally but within the scope of provision of provision

Benefit of doubt must be given to assesseeBenefit of doubt must be given to assessee

Dictionary meanings are helpful but not final. Once a phrase / expression is defined Dictionary meanings are helpful but not final. Once a phrase / expression is defined in statute, that definition alone will apply. It may or may not coincide with in statute, that definition alone will apply. It may or may not coincide with ordinary or natural meaning ordinary or natural meaning

Cont….Cont….

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AppealAppeal

If statutory provision on its plain reading leads to clear meaning, only that should If statutory provision on its plain reading leads to clear meaning, only that should be inferred out of it without any external aid be inferred out of it without any external aid

Principle of strict interpretation applies to taxing statutes. One has to look merely at Principle of strict interpretation applies to taxing statutes. One has to look merely at what is clearly said. There is no consideration for equity or presumptionwhat is clearly said. There is no consideration for equity or presumption

Purpose for which provision was made should also be seen – legislative intention Purpose for which provision was made should also be seen – legislative intention

Primacy to notifications over rules and rules over section need not be given Primacy to notifications over rules and rules over section need not be given Charging section can not be brought by notification Charging section can not be brought by notification

Taxing statute can not be interpreted on any presumption or assumption. Purpose of Taxing statute can not be interpreted on any presumption or assumption. Purpose of provision must be kept in mind. It should give effect to legislative purposeprovision must be kept in mind. It should give effect to legislative purpose

Interpretation must depend on text and context. Interpretation must depend on text and context.

2929

AppealAppeal

Judicial Discipline / Precedent Judicial Discipline / Precedent

Order can not be passed which is inconsistent with judgment of apex courtOrder can not be passed which is inconsistent with judgment of apex court Tribunal’s decision have overriding effect over departmental clarification Tribunal’s decision have overriding effect over departmental clarification Larger bench decisions to be followed by smaller bench. Larger bench decisions to be followed by smaller bench. Stay orders can be varied or vacated and are not precedents Stay orders can be varied or vacated and are not precedents Decision delivered on peculiar set of facts can not be applied to situation in Decision delivered on peculiar set of facts can not be applied to situation in

different set of facts different set of facts One can not pick a sentence from here and there in judgment and One can not pick a sentence from here and there in judgment and

characterize it to be ratio of case. characterize it to be ratio of case. Judicial propriety demands that coordinate bench to follow decision of Judicial propriety demands that coordinate bench to follow decision of

another coordinate bench of same another coordinate bench of same Tribunal [Gammon India Ltd v CCE Tribunal [Gammon India Ltd v CCE (2011) 269 ELT 289 (SC)].(2011) 269 ELT 289 (SC)].

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AppealAppeal

Natural Justice PrincipleNatural Justice Principle not capable of a definition not capable of a definition root of judicial process root of judicial process to check arbitrary exercise of power to check arbitrary exercise of power duty to act fairlyduty to act fairly to secure justice or to prevent miscarriage of justice to secure justice or to prevent miscarriage of justice No person should be condemned or held guilty unheard or an No person should be condemned or held guilty unheard or an

opportunity should be given for being heardopportunity should be given for being heard Orders without giving adjournment sought Orders without giving adjournment sought Denial of cross examinationDenial of cross examination Non- return of RUDs Non- return of RUDs

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AppealAppeal

Reasoned / Speaking order Reasoned / Speaking order Countering grounds / defense Countering grounds / defense Order should give reason for arriving at conclusion showing proper Order should give reason for arriving at conclusion showing proper

application of mind application of mind Order should be supported by reasons of rationality Order should be supported by reasons of rationality Out come of observance of principles of natural justiceOut come of observance of principles of natural justice Orders without assigning any valid reason and without discussion are not-Orders without assigning any valid reason and without discussion are not-

speaking orders speaking orders Mere reproduction of submissions in the body of order is not enough. Mere reproduction of submissions in the body of order is not enough.

Findings of deciding authority on those submissions is necessary. Findings of deciding authority on those submissions is necessary. Order must give specific findings on submission, judgments relied upon Order must give specific findings on submission, judgments relied upon

and distinguishing features pointed out by both parties and distinguishing features pointed out by both parties Cryptic orders not bringing out reason why assessee faced demand set Cryptic orders not bringing out reason why assessee faced demand set

aside.aside.

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AppealAppeal

Stay/ Waiver of Pre-deposit Stay/ Waiver of Pre-deposit

Section 35 F Central Excise Act 1944Section 35 F Central Excise Act 1944 Pre-deposit : means deposit of duty (Service tax) and penalty pending the Pre-deposit : means deposit of duty (Service tax) and penalty pending the

disposal of appeal. disposal of appeal. Any person desirous of appealing against the order shall pending the Any person desirous of appealing against the order shall pending the

appeal, deposit the duty demanded or penalty levied thereon appeal, deposit the duty demanded or penalty levied thereon Right to appeal by itself does not waive requirement of payment of pre-Right to appeal by itself does not waive requirement of payment of pre-

deposit.deposit. To be paid unless it is waived or stayed.To be paid unless it is waived or stayed. Duty demanded include –Duty demanded include –

duty / service tax duty / service tax erroneous cenvat credit taken erroneous cenvat credit taken interest payableinterest payable

3333

AppealAppeal

Principles of Pre-depositPrinciples of Pre-deposit• Prima facie case, balance of convenience and irreparable loss has to be Prima facie case, balance of convenience and irreparable loss has to be

considered considered • On merely establishing a prima facie case, interim order of protection On merely establishing a prima facie case, interim order of protection

should not be passed.should not be passed.• When denial of interim relief may lead to public mischief, grave When denial of interim relief may lead to public mischief, grave

irreparable private injury or shake citizen’s faith in impartiality of public irreparable private injury or shake citizen’s faith in impartiality of public administration, pre-deposit could be waived.administration, pre-deposit could be waived.

• ‘‘undue’ add some thing more to hardship, excessive hardshipundue’ add some thing more to hardship, excessive hardship• Pre-deposit can not waived in every case of undue hardship, interest of Pre-deposit can not waived in every case of undue hardship, interest of

revenue have also to be protected.revenue have also to be protected.• Balance of convenience must be clearly in favor of making an interim Balance of convenience must be clearly in favor of making an interim

order with no indication of likely prejudice to revenue.order with no indication of likely prejudice to revenue.• Twin considerations of undue hardship and conditions to safeguards Twin considerations of undue hardship and conditions to safeguards

interest of revenue must be kept in view.interest of revenue must be kept in view.

3434

AppealAppeal

When can pre- deposit be waived / stayed When can pre- deposit be waived / stayed Opinion of CCE (A) or CESTAT Opinion of CCE (A) or CESTAT Duty / penalty would cause undue hardship to appellant Duty / penalty would cause undue hardship to appellant Deposit can be dispensed with / without conditions Deposit can be dispensed with / without conditions Conditions may be imposed as deemed fit to safeguard interest of revenue Conditions may be imposed as deemed fit to safeguard interest of revenue Pre deposit application to be considered by CCE (A) within 30 days from date of its Pre deposit application to be considered by CCE (A) within 30 days from date of its

filing (Circular No. 396 dated 2.6.1998); No time limit for tribunal.filing (Circular No. 396 dated 2.6.1998); No time limit for tribunal. Pre deposit neither an absolute right nor ingredient of natural justice Pre deposit neither an absolute right nor ingredient of natural justice Appeal to be considered only on fulfillment of conditions of pre-deposit.Appeal to be considered only on fulfillment of conditions of pre-deposit. Statutory right subject to conditions of grant Statutory right subject to conditions of grant Mere filing appeal does not amount to grant of stayMere filing appeal does not amount to grant of stay Pre deposit of only duty and penalty are required Pre deposit of only duty and penalty are required Where demands are huge, advisable to simultaneously seek grant of stay / waiver Where demands are huge, advisable to simultaneously seek grant of stay / waiver

of pre deposit. of pre deposit.

Cont…….Cont…….

3535

AppealAppeal

When can pre- deposit be waived / stayed When can pre- deposit be waived / stayed

Separate application to be made alongwith appeal (not after filing appeal)Separate application to be made alongwith appeal (not after filing appeal) Application to request for stay of recovery of demand till appeal is decided Application to request for stay of recovery of demand till appeal is decided Fee payable with stay application -Fee payable with stay application -

before Commissioner (Appeal) before Commissioner (Appeal) - - NilNil before Tribunal before Tribunal - - Rs. 500Rs. 500 by Department by Department - - Nil Nil

Pre deposit to be waived only if its non – waiver would result in undue Pre deposit to be waived only if its non – waiver would result in undue hardship hardship

Undue hardship – depends upon facts and circumstances of each caseUndue hardship – depends upon facts and circumstances of each caseCont…….Cont…….

3636

AppealAppeal

When can pre- deposit be waived / stayed When can pre- deposit be waived / stayed Principles followed –Principles followed –

prima-facie case in favour of assessee prima-facie case in favour of assessee balance of convenience qua deposit balance of convenience qua deposit irreparable loss if any to be caused,if stay not granted irreparable loss if any to be caused,if stay not granted discourage frivolous appeals discourage frivolous appeals safeguarding of public interest safeguarding of public interest

No automatic stay / waiver No automatic stay / waiver Order for stay / waiver of recovery to be specifically Order for stay / waiver of recovery to be specifically

passed, not assumed passed, not assumed Sole discretion of appellate authority Sole discretion of appellate authority

3737

AppealAppeal

Disposal of Pre -deposit Disposal of Pre -deposit Payment of amount as required for pre-Payment of amount as required for pre-

deposit, deposit, Stay of pre-deposit, orStay of pre-deposit, or Waiver of requirement of pre-deposit.Waiver of requirement of pre-deposit.

3838

AppealAppeal

Out come of pre- deposit Out come of pre- deposit If stay granted – interim stay on demand till appeal is decided / If stay granted – interim stay on demand till appeal is decided /

180 days 180 days If stay granted and appeal fails – demand becomes payable If stay granted and appeal fails – demand becomes payable

forth with forth with If stay granted and appeal succeeds - pre deposit becomes If stay granted and appeal succeeds - pre deposit becomes

refundable unless stayed by higher court refundable unless stayed by higher court Pre-deposit to be refunded within 3 months of communication Pre-deposit to be refunded within 3 months of communication

of order to adjudicating authorityof order to adjudicating authority After expiry of 3 months, interest on delayed refund is payable After expiry of 3 months, interest on delayed refund is payable

as per rate in section 11BB . Presently, (@ 6%p.a)as per rate in section 11BB . Presently, (@ 6%p.a) During pendency of stay application, generally coercive steps During pendency of stay application, generally coercive steps

are not taken for recovery; no interest can be claimedare not taken for recovery; no interest can be claimed

3939

AppealAppeal

Documents required for refund of pre-deposit Documents required for refund of pre-deposit Following documents should filed for claiming refund of Following documents should filed for claiming refund of

pre-pre-deposits made under section 35 F of the Central Excise Act, 1944deposits made under section 35 F of the Central Excise Act, 1944 Application in plain form. Application in plain form. Copy of order of Appellate Authority consequent to which the Copy of order of Appellate Authority consequent to which the

deposit made becomes returnable.deposit made becomes returnable. Copy of Challan evidencing payment of pre-deposit (in Copy of Challan evidencing payment of pre-deposit (in

original).original). Any other document in support of the refund claim.Any other document in support of the refund claim.

4040

AppealAppeal

Pre deposit – some instances from Judicial pronouncements Pre deposit – some instances from Judicial pronouncements Retired appellant- pre deposit of Rs. 6 lakhs ordered in 12 instatements Retired appellant- pre deposit of Rs. 6 lakhs ordered in 12 instatements Partial pre deposit Partial pre deposit Pre deposit by way of bank guarantee allowed Pre deposit by way of bank guarantee allowed Mere financial hardship is not undue hardship- to be substantiate with evidence Mere financial hardship is not undue hardship- to be substantiate with evidence BIFR cases BIFR cases Even prima facie case is not enough but if it appear that demand raised has no leg to stand, it Even prima facie case is not enough but if it appear that demand raised has no leg to stand, it

would be undesirable to require assessee to pay full / substantive part of demand would be undesirable to require assessee to pay full / substantive part of demand [(2009) 237 [(2009) 237 ELT 3 (SC)]ELT 3 (SC)]

Order should be sustained on touch stone of fairness, legality and public interest. Where denial Order should be sustained on touch stone of fairness, legality and public interest. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake citizen’s of interim relief may lead to public mischief, grave irreparable private injury or shake citizen’s faith in the impartiality of pubic administration, interim relief can be given faith in the impartiality of pubic administration, interim relief can be given [(2009) 23 STT [(2009) 23 STT 400 (Delhi)] 400 (Delhi)]

Order rejecting appeal for want of pre-deposit on one hand and also rejecting the same on Order rejecting appeal for want of pre-deposit on one hand and also rejecting the same on merits not sustainablemerits not sustainable [( Timeline Ship Management Pvt Ltd v CST, Mumbai (2011) 24 STR [( Timeline Ship Management Pvt Ltd v CST, Mumbai (2011) 24 STR 312 (Cestat, Mumbai)]312 (Cestat, Mumbai)]

Discretion vested with appellate authority to dispense with pre-deposit. Enhancement not Discretion vested with appellate authority to dispense with pre-deposit. Enhancement not sustainable-sustainable- [Hussnain International (2012) 25 STR 191 (SC)] [Hussnain International (2012) 25 STR 191 (SC)]

4141

Appeal Before Tribunal Appeal Before Tribunal

- Section 86 Finance Act, 1994Section 86 Finance Act, 1994- Second stage Appellate PlatformSecond stage Appellate Platform- Appeal against order of Commissioner or Appeal against order of Commissioner or

Commissioner (Appeal)Commissioner (Appeal)- Appealable order passed under section-Appealable order passed under section-

- 73 73 Recovery of Service tax Recovery of Service tax - 83 A83 A Adjudication Adjudication- 85 85 First stage appeal orders First stage appeal orders

- Appellate Tribunal is called CESTAT Appellate Tribunal is called CESTAT

(Customs, Excise & Service tax Appellate Tribunal )(Customs, Excise & Service tax Appellate Tribunal )

4242

Appeal Before TribunalAppeal Before Tribunal• Last court of appeal on factsLast court of appeal on facts• Bound to take note of all possible issues arising out of dispute including Bound to take note of all possible issues arising out of dispute including

legal issueslegal issues• Appeal before Tribunal to be preferred within 3 months from the date of Appeal before Tribunal to be preferred within 3 months from the date of

communication of order by assesseecommunication of order by assessee• 90 days period can be extended on show of sufficient cause (period not 90 days period can be extended on show of sufficient cause (period not

specified ).specified ).• W.e.f. 28.5.2012, Department can file appeal within four months from date W.e.f. 28.5.2012, Department can file appeal within four months from date

on which order to be appealed is received by Committee of CCCEs / CCEson which order to be appealed is received by Committee of CCCEs / CCEs• Both parties are entitled to file memorandum of cross objection within 45 Both parties are entitled to file memorandum of cross objection within 45

days of receipt of notice.days of receipt of notice.• Tribunal order are binding in nature unless it is set aside by superior Tribunal order are binding in nature unless it is set aside by superior

authority authority • Procedures at CESTAT as per Cestat (Procedure) Rules, 1982.Procedures at CESTAT as per Cestat (Procedure) Rules, 1982.

4343

Appeal Before TribunalAppeal Before Tribunal

Cestat Benches (6 in all)Cestat Benches (6 in all) Principal bench at New DelhiPrincipal bench at New Delhi Coordinate benches at Coordinate benches at

KolkataKolkata

MumbaiMumbai

ChennaiChennai

BangaloreBangalore

Ahmedabad Ahmedabad

4444


Limitations of CESTATLimitations of CESTATCESTAT functions with the following limitations as it CESTAT functions with the following limitations as it cannot –cannot – grant compensation owing to unlawful action of revenue authorities.grant compensation owing to unlawful action of revenue authorities. review its own order as any quasi judicial authority cannot review its own review its own order as any quasi judicial authority cannot review its own

order.order. exercise powers beyond statute as it is a creature of statute only. It cannot issue exercise powers beyond statute as it is a creature of statute only. It cannot issue

writs or grant relief which ought to be granted by high court.writs or grant relief which ought to be granted by high court. comment on legitimacy of statute and has to presume legal validity of the comment on legitimacy of statute and has to presume legal validity of the

provisions of Act and Rules.provisions of Act and Rules. punish for its own contempt but has to forward it to high court for its punish for its own contempt but has to forward it to high court for its

consideration.consideration. act as a court as it is a tribunal and cannot be equated to a court. Members of act as a court as it is a tribunal and cannot be equated to a court. Members of

tribunal are not judges and their decisions are orders, not judgments.tribunal are not judges and their decisions are orders, not judgments. over rule any high court judgment and are bound by judgments of high courts over rule any high court judgment and are bound by judgments of high courts

and Supreme Court.and Supreme Court.

4545

Appeal Before TribunalAppeal Before TribunalFee payable to Tribunal (w.e.f. 1.11.2004)Fee payable to Tribunal (w.e.f. 1.11.2004)Vide Notification No 31/2004-ST dated 25.10.2004Vide Notification No 31/2004-ST dated 25.10.2004

Amount of Service Tax/Interest/Penalty Involved Amount of Service Tax/Interest/Penalty Involved Prescribed FeePrescribed FeeRs. five lakh or less Rs. five lakh or less Rs 1,000Rs 1,000More than Rs five lakh but not exceeding Rs fifty lakh More than Rs five lakh but not exceeding Rs fifty lakh Rs 5,000Rs 5,000More than Rs fifty lakh More than Rs fifty lakh Rs 10,000Rs 10,000

Fee for Application for Fee for Application for Rs 500Rs 500Grant of stayGrant of stayRectification of mistake Rectification of mistake Restoration of appeal or application, or Restoration of appeal or application, or For any other purpose (clubbing of appeals, early hearing etc)For any other purpose (clubbing of appeals, early hearing etc)

No fee forNo fee for-- Filing memorandum of cross objection Filing memorandum of cross objection -- Filing appeal by Department Filing appeal by Department -- Adjournment Adjournment

4646


Forms of appeal to Tribunal (Rule 9)Forms of appeal to Tribunal (Rule 9)

u/s 86 (1)u/s 86 (1) FormForm ST 5ST 5


u/s 86 (2A)u/s 86 (2A) FormForm ST 7ST 7


(Memorandum of cross (Memorandum of cross objections)objections)

4747


Form ST-5Form ST-5-- Filed by aggrieved assessee against order of CCE or CCE (A)Filed by aggrieved assessee against order of CCE or CCE (A)- Within 3 months of communication of order Within 3 months of communication of order - Filed in quadruplicate Filed in quadruplicate - Accompanied by four copies order appealed against, one of Accompanied by four copies order appealed against, one of

which shall be certified copy (certified by departmental which shall be certified copy (certified by departmental officer)officer)

- Statement of factsStatement of facts- Grounds of appealGrounds of appeal- Verified in prescribed manner Verified in prescribed manner - Dated & signedDated & signed- Stay application to be filed simultaneously Stay application to be filed simultaneously

4848


Form ST-6Form ST-6 Filed by assessee/ departmentFiled by assessee/ department Four copies of memorandum of cross-objections must be filed, Four copies of memorandum of cross-objections must be filed,

duly signed and verified. duly signed and verified. Contain relief claimed in memorandum of cross objection Contain relief claimed in memorandum of cross objection Ground of cross objection – concise , under distinct heads Ground of cross objection – concise , under distinct heads

without any argument or narrative, numbered consecutively without any argument or narrative, numbered consecutively Form ST-6 should be preferably typed in English or Hindi. Form ST-6 should be preferably typed in English or Hindi. It should be filed within 45 days of the notice. It should be filed within 45 days of the notice. It has to be submitted to Appellate Tribunal. It has to be submitted to Appellate Tribunal. To be verified in prescribed manner To be verified in prescribed manner Fill number any year of appeal as per noticeFill number any year of appeal as per notice

4949


Form ST-7Form ST-7 Used for appeal u/s 86 (2) and 86 (2A) Used for appeal u/s 86 (2) and 86 (2A) Form ST-7 should be used for appeal to Appellate Tribunal under Section 86(2) or Form ST-7 should be used for appeal to Appellate Tribunal under Section 86(2) or

86(2A) against orders under Section 85. 86(2A) against orders under Section 85. Appeal should be filed in four copies. Appeal should be filed in four copies. Four copies of order or decision appealed against should be attached (at least one Four copies of order or decision appealed against should be attached (at least one

such copy should be a certified copy). such copy should be a certified copy). The form should be verified in the prescribed manner. The form should be verified in the prescribed manner. Memorandum of cross objections should be made in Form ST-6 within 45 days of Memorandum of cross objections should be made in Form ST-6 within 45 days of

the receipt of notice. the receipt of notice. Appeal should be preferred within 3 months of the date on which the order sought Appeal should be preferred within 3 months of the date on which the order sought

to be appealed against is received by the Board or Commissioner. to be appealed against is received by the Board or Commissioner. No fee is payable on filing of appeals under Section 86(2) or 86(2A) by the No fee is payable on filing of appeals under Section 86(2) or 86(2A) by the

Department. Department. Appeal under Section 86(2A) should be accompanied by copy of order of the Appeal under Section 86(2A) should be accompanied by copy of order of the

Commissioner (Appeals) and copy of the order passed by the Commissioner Commissioner (Appeals) and copy of the order passed by the Commissioner directing the Deputy/Assistant Commissioner to apply to the Appellate Tribunal.directing the Deputy/Assistant Commissioner to apply to the Appellate Tribunal.

5050


Appeals before CESTAT – Some points Appeals before CESTAT – Some points Appeals decided on merit / ex-partie if appellant / respondent fails to Appeals decided on merit / ex-partie if appellant / respondent fails to

appear on appointed date or fails to seek adjournment appear on appointed date or fails to seek adjournment If appellant does not wish to appear in person or through AR, he may If appellant does not wish to appear in person or through AR, he may

intimate that matter be decided on merit intimate that matter be decided on merit Clubbing of similar appeals can be sought Clubbing of similar appeals can be sought Before main appeal is taken up, compliance of stay order to be advised Before main appeal is taken up, compliance of stay order to be advised Main appeal can be dismissed for non-compliance Main appeal can be dismissed for non-compliance Certified Copy – Original copy of order received by party or copy duly Certified Copy – Original copy of order received by party or copy duly

authenticated by department authenticated by department Can be sent by registered post.Can be sent by registered post.

Cont…..Cont…..

5151


Appeals before CESTAT – Some points Appeals before CESTAT – Some points

One appeal for each Order-in-Original.One appeal for each Order-in-Original. Each aggrieved person to file a separate appeal Each aggrieved person to file a separate appeal Date of presentation Date of presentation Typed in double spaceTyped in double space Tribunal in deciding appeal shall not be confined to grounds in appeal.Tribunal in deciding appeal shall not be confined to grounds in appeal. Commissioner shall be made respondent. If appeal filed by department, Commissioner shall be made respondent. If appeal filed by department,

assessee should be made respondent.assessee should be made respondent. Document authorizing representative to be attached to appeal memo.Document authorizing representative to be attached to appeal memo. Same bench to hear application for rectification of mistake. Same bench to hear application for rectification of mistake.

5252

Appeal Before TribunalAppeal Before Tribunal Appellant should prepare the appeal in proper paper book formAppellant should prepare the appeal in proper paper book form To be submitted within one month of appealTo be submitted within one month of appeal

4 copies to be submitted4 copies to be submitted copies of documentscopies of documents statements of witness statements of witness other papers referred in orderother papers referred in order RUD’s etcRUD’s etc

Respondent can also file paper book Respondent can also file paper book Duly paged, indexed, taged, foldered Duly paged, indexed, taged, foldered Documents produced with appeal to be attested as true copyDocuments produced with appeal to be attested as true copy.. At least 7 days before hearing, following may be submitted-At least 7 days before hearing, following may be submitted-

List of important events concerning dispute with respective dates List of important events concerning dispute with respective dates List of decisions of Tribunal, other authorities and judgments of high court/ List of decisions of Tribunal, other authorities and judgments of high court/

Supreme court proposed to be relied upon during hearing .Supreme court proposed to be relied upon during hearing .

5353


CESTAT ordersCESTAT orders Common order in group of appeals is permissible Common order in group of appeals is permissible Division bench decision precedes the judicial Division bench decision precedes the judicial

authority over single bench decision. Law laid by DB authority over single bench decision. Law laid by DB to be followed by SB.to be followed by SB.

Tribunal empowered to remand matters Tribunal empowered to remand matters Tribunal can refer the matters to larger bench by way Tribunal can refer the matters to larger bench by way

of reasoned orders, not just desire.of reasoned orders, not just desire. Proceedings in open court.Proceedings in open court.

5454


Monetary limits for filing appeal before Tribunal by Monetary limits for filing appeal before Tribunal by DepartmentDepartment

Rs. 5,00,000 (w.e.f. 1.9.2011) Rs. 5,00,000 (w.e.f. 1.9.2011) Determinative element – Duty / tax under dispute alone Determinative element – Duty / tax under dispute alone Interest or penalty not be clubbed Interest or penalty not be clubbed Where penalty is disputed – Further litigation only if amount Where penalty is disputed – Further litigation only if amount

exceeds Rs. 5 lakhexceeds Rs. 5 lakh No monetary limit for – No monetary limit for –

Challenge of constitutional validity Challenge of constitutional validity Notification / order / circular held illegal or Notification / order / circular held illegal or ultra vires ultra vires

Same limit to apply to refund. Same limit to apply to refund.

5555


Representation before CESTATRepresentation before CESTAT-- POA/ POA/ VakalatnamaVakalatnama to be filed with appeal memo to be filed with appeal memo- A C.A. is allowed to represent his client’s case before A C.A. is allowed to represent his client’s case before

CESTATCESTAT- Others eligible areOthers eligible are

• Cost accountantCost accountant• Company Secretary Company Secretary • AdvocateAdvocate• Commerce graduate (H)/ post graduate Commerce graduate (H)/ post graduate • Post graduate in business administration / MBAPost graduate in business administration / MBA• Retired employee of CBEC with > 10 years experienceRetired employee of CBEC with > 10 years experience

5656


Appeal to Court Appeal to Court (High Court, Supreme Court)(High Court, Supreme Court) Section 35 G of Central Excise Act, 1942Section 35 G of Central Excise Act, 1942 Against Cestat orderAgainst Cestat order Only when substantial question of law arisesOnly when substantial question of law arises Within 180 days of receipt of order sought to be appealed Within 180 days of receipt of order sought to be appealed

againstagainst Prescribed feePrescribed fee Order of high court appealable in Supreme Court if high court Order of high court appealable in Supreme Court if high court

certifies it to be fit for appeal.certifies it to be fit for appeal.

5757


Monetary Limits for appeals by department (CBEC)Monetary Limits for appeals by department (CBEC)(Instruction No 390/ Misc/ 163/2010-JC dated 17.8.2011)(Instruction No 390/ Misc/ 163/2010-JC dated 17.8.2011) Monetary limitMonetary limit

Before CESTATBefore CESTAT > Rs 5 lakh> Rs 5 lakhBefore High CourtsBefore High Courts > Rs 10 lakh> Rs 10 lakhBefore Supreme CourtBefore Supreme Court > Rs 25 lakh > Rs 25 lakh

Determinative element would be duty / tax under disputeDeterminative element would be duty / tax under dispute If penalty or interest is under dispute and amount exceeds the limits, If penalty or interest is under dispute and amount exceeds the limits,

further litigation can follow.further litigation can follow. Same limits to apply in refund cases.Same limits to apply in refund cases. Adverse judgments to be contested irrespective of amount if-Adverse judgments to be contested irrespective of amount if-

-- Constitutional validity is under challengeConstitutional validity is under challenge-- Notification / Circular has been held Notification / Circular has been held ultra viresultra vires / illegal / illegal

5858

Revision Mechanism Revision Mechanism

Introduced by Finance Act, 2012Introduced by Finance Act, 2012 Section 35EE of Central Excise Act, 1944 made Section 35EE of Central Excise Act, 1944 made

applicable to Service Tax w.e.f. 28.05.2012 applicable to Service Tax w.e.f. 28.05.2012 All appeals against Commissioner (Appeals) orders All appeals against Commissioner (Appeals) orders

lied before Tribunal prior to 28.05.2012.lied before Tribunal prior to 28.05.2012. Like Excise, in Service Tax also, revision authority Like Excise, in Service Tax also, revision authority

shall hear matters relating to –shall hear matters relating to – Cenvat Credit Cenvat Credit Rebate of Exports Rebate of Exports

to be contd……..to be contd……..

5959

Revision Mechanism Revision Mechanism Revision by Central Government (Joint Secretary in MOF)Revision by Central Government (Joint Secretary in MOF) Revision application to be heard and order passedRevision application to be heard and order passed Order may be annulled or modifiedOrder may be annulled or modified Minimum amount of dispute Rs. 5000Minimum amount of dispute Rs. 5000 To be filed within 3 months of communication of orderTo be filed within 3 months of communication of order Revision can be sought by CCE/ assesseeRevision can be sought by CCE/ assessee Central Government can also Central Government can also suo motosuo moto revise revise No provisions for appeal against revisionary order.No provisions for appeal against revisionary order. Only remeady is writ Jurisdiction Only remeady is writ Jurisdiction Quasi judicial proceedings Quasi judicial proceedings

6060

ADVANCE RULING IN SERVICE ADVANCE RULING IN SERVICE TAX TAX

Statutory provisions in Chapter VA of Finance Act, Statutory provisions in Chapter VA of Finance Act, 1944 (Introduced by Finance Act, 2003) 1944 (Introduced by Finance Act, 2003)

Section 96A to 96J Section 96A to 96J Service Tax (Advance Ruling) Rules, 2003Service Tax (Advance Ruling) Rules, 2003 The authority for Advance Ruling (Customs, Central The authority for Advance Ruling (Customs, Central

Excise and Service Tax) Procedure Regulations, 2005Excise and Service Tax) Procedure Regulations, 2005

6161

ADVANCE RULING IN SERVICE ADVANCE RULING IN SERVICE TAXTAX

Pronounced by AAR (CE, C & ST), New Delhi Pronounced by AAR (CE, C & ST), New Delhi Quasi judicial body Quasi judicial body Chaired by retired judge of Supreme Court Chaired by retired judge of Supreme Court To obtain in advance a ruling from AARTo obtain in advance a ruling from AAR Rulings are final and binding in nature.Rulings are final and binding in nature. Facilitate determination of a question of law or fact Facilitate determination of a question of law or fact

on liability to pay Service Tax on liability to pay Service Tax Taxability of proposed service business activity to be Taxability of proposed service business activity to be

providedprovided Saves time consuming and costly litigation.Saves time consuming and costly litigation.

6262

Who can seek Advance Ruling Who can seek Advance Ruling a non-resident setting up a joint venture in India in a non-resident setting up a joint venture in India in

collaboration with resident or non resident, orcollaboration with resident or non resident, or a resident setting up a joint venture in India in collaboration a resident setting up a joint venture in India in collaboration

with a non-resident, orwith a non-resident, or a wholly owned subsidiary Indian company, whose holding a wholly owned subsidiary Indian company, whose holding

company is a foreign company.company is a foreign company. an existing joint venture in India, an existing joint venture in India, a resident under any class of service, as the Central a resident under any class of service, as the Central

Government may notify (public sector companies notified Government may notify (public sector companies notified vide vide Notification No 27/2009-ST dated 20.8.2009)Notification No 27/2009-ST dated 20.8.2009)

a resident as an applicant who proposes to import any goods a resident as an applicant who proposes to import any goods from the Republic of Singapore under Comprehensive from the Republic of Singapore under Comprehensive Economic Co-operation Agreement (CECA).Economic Co-operation Agreement (CECA).

6363

Conditions to be satisfied for seeking Conditions to be satisfied for seeking Advance Ruling by non-residentAdvance Ruling by non-resident

There must be existence of a joint venture or a There must be existence of a joint venture or a proposal to set up a joint venture.proposal to set up a joint venture.

Joint venture must be set up in India.Joint venture must be set up in India. Joint venture must be in collaboration with a resident Joint venture must be in collaboration with a resident

or a non-resident.or a non-resident. Atleast one person to be non resident Atleast one person to be non resident Joint venture Joint venture – – participation by both parties participation by both parties CollaborationCollaboration – – financing / managerial / financing / managerial /

technical technical

6464

What is Advance Ruling What is Advance Ruling

Advance ruling is -Advance ruling is - a process of determination a process of determination by the prescribed authority onlyby the prescribed authority only of a question of law or factof a question of law or fact relating to liability of service tax relating to liability of service tax on proposed service on proposed service to be provided by an applicant to be provided by an applicant

6565

Benefits of Advance RulingBenefits of Advance Ruling

Clarity and certainty of tax liability or activities Clarity and certainty of tax liability or activities proposed to be undertakenproposed to be undertaken

Finality of issue and avoidance of litigationFinality of issue and avoidance of litigation Speedy decisions (within 90 days)Speedy decisions (within 90 days) Inexpensive processInexpensive process Transparency and simple procedure (natural justice Transparency and simple procedure (natural justice

followed) followed) Binding on applicant / DepartmentBinding on applicant / Department No appeals against rulingNo appeals against ruling

6666

Matters on which Advance Ruling Matters on which Advance Ruling can be soughtcan be sought

Any subject touching upon question of fact or lawAny subject touching upon question of fact or law

relating to proposed service and its taxabilityrelating to proposed service and its taxability Scope of service regarding taxability Scope of service regarding taxability Classification of service into a particular category of serviceClassification of service into a particular category of service Valuation of a service for charging service tax including valuation Valuation of a service for charging service tax including valuation

principlesprinciples Availability of exemption or any abatement Availability of exemption or any abatement Applicability of notifications (not circulars)Applicability of notifications (not circulars) Availability of Cenvat credit of duty or tax as per rulesAvailability of Cenvat credit of duty or tax as per rules Determination of liability to pay service tax. Determination of liability to pay service tax. Any matter relating to law in respect of aboveAny matter relating to law in respect of above

6767

Who can be applicant (Section 96A)Who can be applicant (Section 96A)

(i) (a) a non-resident setting up a joint venture in India in (i) (a) a non-resident setting up a joint venture in India in collaboration with a non-resident or resident; or collaboration with a non-resident or resident; or

(b) a resident setting up a joint venture in India in (b) a resident setting up a joint venture in India in collaboration with a non-resident; or collaboration with a non-resident; or

(c) a wholly owned subsidiary Indian company, of which the (c) a wholly owned subsidiary Indian company, of which the holding company is a foreign company,holding company is a foreign company,

who or which as the case may be, proposes to undertake who or which as the case may be, proposes to undertake any business activity in India; any business activity in India;

(ii) a joint venture in India; or (ii) a joint venture in India; or (iii) a resident falling within any such class or category of (iii) a resident falling within any such class or category of

persons, as the Central Government may, by notification in persons, as the Central Government may, by notification in the Official Gazette, specify in the behalfthe Official Gazette, specify in the behalf

(iv) Public sector company can be applicant(iv) Public sector company can be applicant

6868

Advance Ruling binding onAdvance Ruling binding on

the applicant the applicant transaction on which ruling is sought, andtransaction on which ruling is sought, and the departmental officers concerned.the departmental officers concerned.

writ jurisdiction is invokable against advance writ jurisdiction is invokable against advance rulingruling

if there is change in law, AR will not be binding if there is change in law, AR will not be binding

6969

Binding nature of Advance Ruling Binding nature of Advance Ruling leads to leads to

Assessing officers (Commissioner or Officers subordinate to Assessing officers (Commissioner or Officers subordinate to him) shall be bound to follow the advance ruling pronounced.him) shall be bound to follow the advance ruling pronounced.

Commissioner will not be able to exercise his revisionary Commissioner will not be able to exercise his revisionary powers to deviate from the ruling.powers to deviate from the ruling.

No appeal is permissible against the advance ruling by No appeal is permissible against the advance ruling by anyone; i.e., applicant or the Commissioner.anyone; i.e., applicant or the Commissioner.

Once pronounced, advance ruling cannot be revoked, revised Once pronounced, advance ruling cannot be revoked, revised or altered. or altered.

Advance ruling is binding on the applicant only and no one Advance ruling is binding on the applicant only and no one else.else.

Advance ruling shall be in force so long as there is no change Advance ruling shall be in force so long as there is no change in law or rules and fact of the question.in law or rules and fact of the question.

7070

Application for Advance Ruling Application for Advance Ruling (Section 96C)(Section 96C)

Prescribed form and manner [Form AAR (ST)]Prescribed form and manner [Form AAR (ST)] Fee Rs. 2500 (non-refundable)Fee Rs. 2500 (non-refundable) Form to be duly singed and verifiedForm to be duly singed and verified Contains Statement of Facts and Applicant’s InterpretationContains Statement of Facts and Applicant’s Interpretation Can be withdrawn within a period of 30 days from date of applicationCan be withdrawn within a period of 30 days from date of application AR not to be given on pending/already decided questionsAR not to be given on pending/already decided questions To be rejected if matter already pending before assessing officer/ Tribunal/ To be rejected if matter already pending before assessing officer/ Tribunal/

CourtCourt Opportunity of being heard to be provided if sought in writingOpportunity of being heard to be provided if sought in writing Copy of application also forwarded to DepartmentCopy of application also forwarded to Department Application can be allowed and Ruling pronounced if not rejectedApplication can be allowed and Ruling pronounced if not rejected

7171

Conditions for rejection Conditions for rejection

Opportunity of being heard should be granted to the Opportunity of being heard should be granted to the applicant.applicant.

Reasons for rejection of application shall be recorded Reasons for rejection of application shall be recorded and given in orderand given in order

Copy of order should be sent to both, Applicant and Copy of order should be sent to both, Applicant and Commissioner of Central Excise.Commissioner of Central Excise.

7272

If allowed, AAR canIf allowed, AAR can Seek and examine further material placed before it by the applicant or Seek and examine further material placed before it by the applicant or

obtained by the authorityobtained by the authority Provide an opportunity of being heard to the applicant before pronouncing Provide an opportunity of being heard to the applicant before pronouncing

the ruling, if, requested by the applicant, either personally or through the ruling, if, requested by the applicant, either personally or through authorized representativeauthorized representative

Pronounce its advance ruling on the question specified in the application.Pronounce its advance ruling on the question specified in the application. Advance ruling is to be pronounced in writingAdvance ruling is to be pronounced in writing Advance ruling should be given within ninety days of the receipt of valid Advance ruling should be given within ninety days of the receipt of valid

applicationapplication Order of advance ruling should be signed by the members of the authority.Order of advance ruling should be signed by the members of the authority. Certified copies of the order should be sent to Certified copies of the order should be sent to (a) Applicant, and (a) Applicant, and (b) Commissioner of Central Excise(b) Commissioner of Central Excise soon after the pronouncement of the advance rulingsoon after the pronouncement of the advance ruling

7373

Applicability of Ruling (Section 96E) Applicability of Ruling (Section 96E)

on the applicant himselfon the applicant himself on the Jurisdictional Commissioner and Assessing on the Jurisdictional Commissioner and Assessing

Officers pertaining to the applicantOfficers pertaining to the applicant on the question of law or facts only on which advance on the question of law or facts only on which advance

ruling was soughtruling was sought can not be applied generally to all assessee can not be applied generally to all assessee

7474

Advance Ruling will be void if Advance Ruling will be void if

There is change in law There is change in law There is change of facts There is change of facts Ruling was obtained by fraud or mis- Ruling was obtained by fraud or mis-

representation of factsrepresentation of facts To be declared void by order in writing To be declared void by order in writing Copy of order to be sent to applicant / Copy of order to be sent to applicant /

departmentdepartment

7575

Powers of Authority (section 96G)Powers of Authority (section 96G)

Discovery and inspectionDiscovery and inspection Enforcing the attendance of any person (applicant, Enforcing the attendance of any person (applicant,

officers, etc.)officers, etc.) Examination on oath of any personsExamination on oath of any persons Issuing commissions, andIssuing commissions, and Compelling production of books of account and other Compelling production of books of account and other

recordsrecords Vested with power of civil court Vested with power of civil court Proceedings to be judicial proceedings Proceedings to be judicial proceedings

7676

Procedures of AAR (section 96H) Procedures of AAR (section 96H) free to regulate its own procedure and functioning free to regulate its own procedure and functioning AAR (C, CE & ST) Procedure Regulations, 2005AAR (C, CE & ST) Procedure Regulations, 2005

Ruling proceduresRuling procedures application filed in form AAR (ST) in four copies application filed in form AAR (ST) in four copies can be submitted in person / by post can be submitted in person / by post all annexures to be numbered and signed all annexures to be numbered and signed evidence that authorised person has signed evidence that authorised person has signed on A-4 size paper on A-4 size paper date of filing is the date of receipt in office of AARdate of filing is the date of receipt in office of AAR

to be contd. ….to be contd. ….

7777

Procedures of AAR (section 96H)Procedures of AAR (section 96H)

in case of non-residents, postal address and in case of non-residents, postal address and email of representative in India / abroademail of representative in India / abroad

scrutiny of application and intimation of scrutiny of application and intimation of deficiency deficiency

serial number to be allotted serial number to be allotted notice for rejection notice for rejection order to be pronounced in open courtorder to be pronounced in open court

7878

Settlement Provisions in Service Tax Settlement Provisions in Service Tax

Introduced by Finance Act, 2012 w.e.f. 28.5.2012Introduced by Finance Act, 2012 w.e.f. 28.5.2012 Sections 31, 32 and 32A to 32P of Central Excise Sections 31, 32 and 32A to 32P of Central Excise

Act, 1944 made applicable to Service Tax (section 83 Act, 1944 made applicable to Service Tax (section 83 of Finance Act, 1994) of Finance Act, 1994)

Service Tax (Settlement of Cases) Rules, 2012 Service Tax (Settlement of Cases) Rules, 2012 notified (N.No. 16/2012-ST dated 28.05.2012)notified (N.No. 16/2012-ST dated 28.05.2012)

Objective to encourage quick settlement of disputes Objective to encourage quick settlement of disputes and save business from prosecution / penalties and save business from prosecution / penalties

Principal bench at Delhi (benches at Mumbai, Principal bench at Delhi (benches at Mumbai, Calcutta, Chennai) Calcutta, Chennai)

7979

Benefits of SettlementBenefits of Settlement

Quick settlement of disputes to avoid prolonged Quick settlement of disputes to avoid prolonged litigation litigation

A one time tax evader or an un-intending defaulter A one time tax evader or an un-intending defaulter can make clean his affairs through Settlementcan make clean his affairs through Settlement

Any defaulting person can admit his guilt, pay taxes Any defaulting person can admit his guilt, pay taxes with applicable interest and avoid further liabilitieswith applicable interest and avoid further liabilities

Settlement Commission can grant waiver/ reduction Settlement Commission can grant waiver/ reduction of penalty, fine or interest of penalty, fine or interest

Settlement Commission can grant immunity from Settlement Commission can grant immunity from prosecution to assessee, its directors and partnersprosecution to assessee, its directors and partners

8080

Settlement of CasesSettlement of Cases Any assessee can approach the Settlement Any assessee can approach the Settlement

Commission Commission The proceedings / cases should be pending with The proceedings / cases should be pending with

aggregate amount of more than Rs 3 lakh involved aggregate amount of more than Rs 3 lakh involved Application to Settlement Commission should be Application to Settlement Commission should be

made with prescribed fee and in prescribed formmade with prescribed fee and in prescribed form Application once made, can not be withdrawnApplication once made, can not be withdrawn Application can be made by any assessee including Application can be made by any assessee including

directors or partners of firmsdirectors or partners of firms Application can also be filed by two or more Application can also be filed by two or more assessees and joint / co - noticeesassessees and joint / co - noticees proceedings or case must be pending before the proceedings or case must be pending before the

adjudicating authority on the date of application. adjudicating authority on the date of application. A show cause notice should have been issuedA show cause notice should have been issued

8181

Settlement of CasesSettlement of Cases Application must make full and true disclosures Application must make full and true disclosures

before the Settlement Commission which is the very before the Settlement Commission which is the very basis of settlement.basis of settlement.

Issues relating to recovery of Cenvat credit can also Issues relating to recovery of Cenvat credit can also be taken up before the Settlement Commissionbe taken up before the Settlement Commission

Cases involving only penalty or cases which are Cases involving only penalty or cases which are pending before court or Appellate Tribunal shall not pending before court or Appellate Tribunal shall not be entertained by the Settlement Commission.be entertained by the Settlement Commission.

Cases involving interpretation of classification and Cases involving interpretation of classification and valuation can not be taken up by Settlement valuation can not be taken up by Settlement Commission .Commission .

8282

Settlement ProceduresSettlement Procedures

Form SC (ST)-1 to be usedForm SC (ST)-1 to be used Application in four copiesApplication in four copies Prescribed fee Rs. 1000Prescribed fee Rs. 1000 Accompanied by attested copies of all Accompanied by attested copies of all

documentsdocuments Duly signed and verifiedDuly signed and verified

8383

Information to be furnished in FormInformation to be furnished in Form

Details of show cause notice including period of dispute and Details of show cause notice including period of dispute and service tax demanded in the notice service tax demanded in the notice

Dispute in connection with which the application for Dispute in connection with which the application for settlement is made settlement is made

Adjudicating Authority before whom the notice is pending Adjudicating Authority before whom the notice is pending adjudication adjudication

Details of service tax returns filed for the period of the dispute Details of service tax returns filed for the period of the dispute and the invoices of taxable services entered in the books of and the invoices of taxable services entered in the books of accounts accounts

Self attested copies of relevant service tax returns and extracts Self attested copies of relevant service tax returns and extracts from books of accounts/register is to be enclosed along with from books of accounts/register is to be enclosed along with the applicationthe application

to be contd…… to be contd……

8484

Information to be furnished in FormInformation to be furnished in Form

Brief facts of the case and particulars of the issues to be settled Brief facts of the case and particulars of the issues to be settled and terms of settlement sought by the applicant and terms of settlement sought by the applicant

Detailed calculations for the accepted service tax as payable Detailed calculations for the accepted service tax as payable for settlement and interest on the said admitted service taxfor settlement and interest on the said admitted service tax

Payment of the service tax along with interest arrived at as Payment of the service tax along with interest arrived at as above above

Details of any application for settlement filed before the Details of any application for settlement filed before the Settlement Commission, if anySettlement Commission, if any

Details of the order debarring the applicant from making Details of the order debarring the applicant from making further application for settlement by any bench of the further application for settlement by any bench of the Settlement CommissionSettlement Commission

Details of order of Settlement Commission making the order Details of order of Settlement Commission making the order as void by any Benches of the Settlement Commission as void by any Benches of the Settlement Commission

8585

Settlement ProceduresSettlement Procedures

Forwarding application to jurisdictional Forwarding application to jurisdictional CommissionerCommissioner

Report from jurisdictional CommissionerReport from jurisdictional Commissioner Copy of report can be supplied on fee (Rs. 5 per Copy of report can be supplied on fee (Rs. 5 per

page)page) Attachment of property through jurisdictional Attachment of property through jurisdictional

CommissionerCommissioner

8686

Appeal Management Appeal Management

Got adverse adjudication order for the client?Got adverse adjudication order for the client?

Don’t be disturbed Don’t be disturbed

AppealAppeal is the solution is the solution

8787

Appeal ManagementAppeal Management

What U require to get started is What U require to get started is Attitude Attitude

At SCN StageAt SCN Stage At AppealAt Appeal

8888


Be different from other professionals Be different from other professionals

8989


Count on your strengthsCount on your strengths

9090


Add value to arguments at appeal stage Add value to arguments at appeal stage

9191


Prepare well Prepare well and and Accept the challenge Accept the challenge

9292

Labour hard on arguments and interpretation- theLabour hard on arguments and interpretation- the

only edge which could win the gameonly edge which could win the game

9393


Be confident and result oriented Be confident and result oriented

9494


After all, practising litigation is a uniqueAfter all, practising litigation is a unique

professional opportunity professional opportunity

9595

THANK YOU FOR

YOUR PRECIOUS TIME

AND ATTENTION

Dr. Sanjiv AgarwalFCA, FCS, Jaipur

[email protected]@gmail.com

Ghaziabad service tax presentation 8-7-2012

Education

appeal study order

appeal stage

relevant appeal

orders commissioner

commissioner appealsappeal

commissioner appealssteps

commissioner appeals6

order orders