In Continuation of my previous article on appeals to Ld. Commissioner (Appeals), Customs, Central Excise and Service Tax in case of service tax, I have complied the main provision of appeals to Hon’ble Customs, Central Excise and Service Tax Appellate Tribunal (CESTAT) in case of service tax demand in following paragraph in this article.

(A) Appealable Order: Assessee aggrieved from any following order can go for appeal:

a. Order passed by Principal Commissioner/ Commissioner u/s 73 or u/s 83A of The Finance Act, 1994.

b. Order passed by Commissioner (Appeals) u/s 85 of The Finance Act, 1994 subject to following exception.

Exception: The appeal cannot be filed with CESTAT in case where order passed by Commissioner (Appeals) u/s 85 is related to matter involving:

a. Rebate of service tax on input services, or

b. Rebate of duty paid on inputs;

if above has been used in providing the service which has been exported.

(B) Time Limit for filling appeal : The appeal has to be filed within 3 months from the date of receipt of order.

Extension of time limit allowed: The Hon’ble CESTAT may allow extension of unlimited period, if sufficient cause for late filing of appeal is shown and proved.

(C) Documents to be filed : Following documents need to be filed IN QUADRUPLICATE (Five sets of appeals shall be prepared out of which 4 will be submitted to CESTAT and one will be with the appellant):

  1. Form ST-5: This is the form for filing appeal. All particulars shall be filed with utmost care. Format is as below:

FORM OF APPEAL TO APPELLATE TRIBUNAL UNDER SUB-SECTION (1) OF SECTION 86 OF THE FINANCE ACT, 1994 (32 OF 1994)

IN THE CUSTOMS, CENTRAL EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, (PLACE OF BENCH)

SERVICE TAX APPEAL NO. ___________/2016

…………………Appellant

Vs

………………….Respondent

1. Appellant Code* Premises Code ** PAN or UID ***

 

E-Mail Address Phone No. Fax No.

 

2.The designation and address of the authority passing the order appealed against.
3.The number and date of the order appealed against.
4.Date of communication of a copy of the order appealed against.
5.State/Union Territory and the collectorate in which the order/decision of assessment/ penalty / fine was made.
6.If the order appealed against relates to more than one Commissionerate, mention the names of the Commissionerate, so far as it relates to the appellant.
7.Designation and address of the adjudicating authority in cases where the order appealed against is an order of the Commissioner (appeals).
8.Address to which the notices may be sent to the appellant.
9.Address to which notices may be sent to the respondent.
10.Whether the decision or order appealed against involves any question having a relation to the rate of service tax or to the value of taxable service for the purpose of assessment.
11.Description of service and whether in ‘negative list’.
12.Period of dispute
13.(i)Amount of service tax, if any, demanded for the period of dispute.
(ii)Amount of interest involved up to the date of the order appealed against.
(iii)Amount of refund, if any, rejected or disallowed for the period of dispute
(iv)Amount of penalty imposed.
14.Amount of service tax or penalty or interest deposited. If so, mention the amount deposited under each head in the box below.

Service TaxPenaltyInterest

(A copy of the challan under which the deposit is made should be furnished.) If not, whether any application for dispensing with such deposit has been made?

15.Does the order appealed against also involve any central excise duty demanded, and related fine or penalty, so far as the appellant is concerned.
16.Does the order appealed against also involve any custom duty demand, and related penalty, so far as the appellant is concerned?
17.Subject matter of dispute in order of priority. (Please choose two items from the list below.) (i) Taxability – Sl. No. Negative List, (ii) Classification of Services, (iii) Applicability of Exemption Notification – Notification No., (iv) Export of services., (v) Import of services., (vi) Point of Taxation., (vii) CENVAT (viii) Refund., (ix) Valuation., (x) Others.
18.Central Excise Appellant Code, if registered with Central Excise.
19.Give details of Importer Exporter Code (IEC), if registered with Director General of Foreign Trade.
20.If the appeal is against an Order-in-Appeal of Commissioner (Appeals), the number of Order-in-Original covered by the said Order-in-Appeal.
21.Whether the respondent has also filed appeal against the order against which this appeal is made?
22.If answer to serial number 21 above is ‘yes’, furnish the details of appeal.
23.Whether the appellant wishes to be heard in person?
24.Reliefs claimed in appeal

Necessary court fees (generally Rs. 5/-) shall be affixed on Form ST-5.

2. Statement of Facts : In this part appellant describes all the material and relevant facts of the case briefly. Calculation shall be provided if necessary.

3. Grounds of Appeal: This is very important part of appeal. In this part, appellant mention all the ground on which assessee wants to pursue the case. All the relevant grounds shall be mentioned in this part. Grounds shall be duly covered by relevant case laws which will support and strengthen the grounds.

4. Prayer : After form ST-4, Statement of Facts and Grounds of Appeal, there shall be a prayer which shall be duly signed by the appellant. The example is as follows:

PRAYER

In view of the foregoing, it is respectfully prayed that this Hon’ble Tribunal may be pleased to:

(a) Set aside that part of the impugned Order in Original No. dated , passed by the Ld. Commissioner (Appeals), Customs, Central Excise & Service Tax, (Place) , which is against the Appellant, along with consequential relief;

(b) Set aside the service tax demand of Rs. confirmed against the Appellant;

(c) Set aside the demand of interest imposed in terms of Section 75 of the Finance Act, 1994;

(d) Set aside the demand of penalty of Rs. imposed under Section 77 of the Finance Act, 1994;

(e) Set aside the demand of penalty of Rs. imposed on Appellant under Section 78 of the Finance Act, 1994;

(f) Grant a personal hearing; or

(g) Pass such other order or orders as may be deemed fit and proper in the facts and circumstances of the case.

(APPELLANT)

5. Verification : After prayer, the appeal shall be duly verified by the appeallant which shall be duly signed. The example is :

VERIFICATION

I, , Proprietor/Partner/Director/Authorized Signatory of M/s , (Place) do hereby verify that what is stated hereinabove is true and correct to the best of my knowledge and belief.

VERIFIED TODAY, THE DAY OF , 2016

(APPELLANT)

6. Application for condonation of delay : If the appeal is being filed after 3 months from the date of receipt of order, the appeal shall be filed with an application seeking condonation of delay which shall be duly verified. The delay shall mention the reasons with necessary evidence why the appeal could not be filed within time. The example is :

BEFORE THE CUSTOMS, CENTRAL EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, (PLACE OF BENCH)

In case of

Applicant

Vs.

Respondent

APPLICATION OF CONDONATION FOR DELAY

The applicant most respectfully beg, pray and humbly submit as follows: –

1. I, the applicant in the above case and state that I know the facts of the case.

2. It is humbly submitted that this Condonation for delay application is before this Hon’ble Customs, Central Excise & Service Tax Appellate Tribunal (Place) against the impugned Order in Original No. dated communicated vide dated passed by the Ld. Commissioner (Appeals) of Central Excise & Service Tax Commissionerate, (Place) received on and with an appeal for the restoration and recall of the above-mentioned appeal.

3. It is humbly submitted that this prayer with a request for condonation of delay for an extension of time to file this petition before this Hon’ble Customs, Central Excise & Service Tax Appellate Tribunal (Place). The appellant is suffering from viral fever and under treatment at Hospital since to . A copy of medical certificate from Doctor is attached herewith. Due to the health problem appellant could not file the appeal within the due time.

4. It is humbly prayed that based upon the totality of the circumstances mentioned above this Hon’ble Customs, Central Excise & Service Tax Appellate Tribunal (Place) may be pleased to consider the prayer of the applicant in granting the condonation for delay of only …. days in appearing before this Hon’ble Customs, Central Excise & Service Tax Appellate Tribunal (Place) for justice and equity.

5. It is humbly submitted that this Hon’ble Customs, Central Excise & Service Tax Appellate Tribunal (Place) on scrutinizing facts and circumstances in the accompanying application, may please construe facts and circumstances as “sufficient cause” for condoning the delay. The facts and circumstances elucidated in the accompanying application involve the question of “substantial justice”, where gross delay of days only, deserves to be condoned in the overall interest of justice. On the other hand if condoning the delay being denied it would seriously undermine the cause of justice, resulting into miscarriage of justice for the complainants.

VERIFICATION

I, , Proprietor/Partner/Director/Authorized Signatory of M/s , (Place) do hereby verify that what is stated hereinabove is true and correct to the best of my knowledge and belief.

VERIFIED TODAY, THE DAY OF , 2016

(APPLICANT)

7. Copy of Order-In-Original (OIO)/Order in Appeal (as the case may be) : Copy of OIO or Order in Appeal (as the case may be) shall be annexed with the appeal out of which one copy shall be duly certified by the department. Necessary court fee (generally 5 Rs.) need to be affix on copy of order.

8. Mandatory Pre-Deposit : It is requirement of 35F of the Central Excise Act, 1944 to deposit mandatory “Pre-Deposit” along with appeal. Therefore, following pre deposit needs to be deposited and proof thereof need to be annexed with the appeal:

If appeal is filed as Original Appeal, i.e., First Appeal to Hon’ble CESTAT :

a) If OIO is against demand of service tax, interest and penalty : 7.5% of service tax portion only

b) If OIO is against demand of penalty only but not of service tax : 7.5% of penalty portion

If appeal is filed as Second Appeal, i.e., Second Appeal to Hon’ble CESTAT :

a) If Order in Appeal is against demand of service tax, interest and penalty : 10% of service tax portion only

b) If Order in Appeal is against demand of penalty only but not of service tax : 10% of penalty portion

However, if pre deposit is also made @ 7.5% at the time of first appeal then only 2.5% will be sufficient to be deposited now, i.e., 10% less 7.5% deposited earlier.

The above pre-deposit can be paid either by paying service tax challan through online banking or after doing reversal of available cenvat credit balance in books and necessary proof need to be attached along with appeal.

9. Vakalatnama/Power of Attorney : There shall be either a Vakalatnama or power of attorney in the favour of counsel which shall be duly signed by appellant as well as counsel.

10. Fees for filing appeal : Non-refundable Fees need to be deposited along with appeal. The fee is based on duty demanded. The fees structure is as follows:

Amount of Duty DemandedFees (in rupees)
Upto Rs. 5 lac1,000/-
More than 5 lac and upto 50 Lac5,000/-
More than 50 lac10,000/-

If any other application is also being filed along with appeal, e.g., Delay Condonation Application, then Rs. 500/- per application will need to be deposited besides above fees.

Above fees will be deposited through Demand Draft in favour of “Assistant Registrar, CESTAT, (Bench Place)”

11. Other documents : Appellant may submit any other documents which in the opinion of appellant will support the case. The various documents which may be submitted are as follows :

a) Copy of SCN (Show Cause Notice) along with RUDs,

b) replies to SCN,

c) Copy of Order In Original if appeal is filed against Appeal

d) Service Tax Registration Application (ST-1),

e) Service Tax Registration Certificate (ST-2)

f) Service Tax Returns (ST-3) for the relevant period

g) Copy of Service Tax Challan

h) Copy of CENVAT Ledger along with copy of bills on which CENVAT is taken

i) Copy of agreement/work order

j) Ledger of parties

k) Form 26AS or TDS Certificates

l) Copy of Financial Statements

m) Reconciliation along with reason against difference in Service Tax Return and Financials

n) Copy of relevant notification of circular

o) Copy of case laws quoted in the appeal, etc.

12. Paper Book duly Indexed and Page Numbered: All documents after arranging in sequence shall be made as paper book which shall be duly numbered and an index shall be prepared regarding documents attached in the paper book along with their page number. Paper book should be centrally punched & tagged and each set should be tagged separately also.

13. Additional ground of appeal/Additional Documents: The appellant can bring any new ground of appeal which was not taken up before lower authorities. The appellant can produce any evidence, documents or case law which was not filed with paper book in 3 copies with the permission of CESTAT. Two copies will be required for judges (two member bench) and one for departmental representative. Appeallant shall have one copy for himself also.

14. Dress Code: The appeallant/counsel shall appear in Dress code before CESTAT. Black coat with white shirt and black tie and black trouser is preferable in case of male. Black coat over a white sari or any other white dress is preferable in case of female.

(D) Hearing of case: After submission of aforesaid documents, it will be checked by Registrar of CESTAT Office and if the documents are complete and in order, then they will accept the appeal and allot the appeal number. Thereafter, opportunity for personal hearing will be provided through a letter fixing the date of hearing. The cause list may be checked on the website of CESTAT also. The appellant shall either in person or through his counsel shall appear on the given date and time.

Adjournment of hearing: CESTAT may grant adjournment from time to time at any stage of hearing, if sufficient cause for adjournment shown to it.

(E) Passing of order : After hearing of case, the Hon’ble CESTAT will pass the order considering the allegation made upon the appeallant and documents and reply submitted by the appellant. If the order is passed against the appellant, then appellant can move to Hon’ble High Court/Supreme Court for further appeal.

(F) Things to be taken care : The appellant or counsel must have gone through the appeal before appearing for hearing. Summary of various dates relating to the case shall be prepared in advance over a paper. Complete and correct knowledge of facts is must. Case Laws as mentioned in appeal shall be learned. The dress shall be professional and be neat and clean. The hearing shall be in a calm manner. Aggression shall be avoided during the hearing. Do not reply the answer which is not known during the hearing. Rather seek time to submit the necessary documents as required by Hon’ble CESTAT. The proceedings will be in English language until and unless branch permits proceedings in Hindi. So one must have good command over English Language. Further, one must have knowledge of Code of Civil Procedure Act and other civil act, eg, Limitation Act, etc. as these play crucial role during hearing. There is separate rule for proceedings before CESTAT, i.e., The Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982. One must go through the above rules.

I hope above article will help in filing appeal with the CESTAT and provide an insight about documents need to be submitted while filing the appeal and things to be keep in mind during the hearing.

CA Vineet RathiCA Vineet Rathi
Proprietor of M/s Vineet Rathi & Associates
Treasurer – Ghaziabad Branch of CIRC of ICAI
Visiting Faculty of ICAI
ACA, DISA (ICAI), LL.B., M.Com
A-370, New Panchwati Colony, Ghaziabad, U.P. – 201001
Mobile : 9717724704
E.Mail : cavineetrathi@gmail.com

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