Service tax has become a major source of revenue to the government. Service tax being complicated on many issues and interpretation often lead to litigation. Government has also expanded the service tax department considerably to stop and find out tax evasion. Knowingly or unknowingly, if one remains fail to comply with the service tax provisions, then there are proceedings against the assessee to recover the due tax, interest and penalty. Assessee, if not satisfied with the demand, prefer appeal to higher authorities. The main provision of appeals to Ld. Commissioner (Appeals), Customs, Central Excise and Service Tax in case of service tax demand is compiled by me in following paragraph.

(A) Appealable Order : Assessee can go for appeal against order of any adjudicating authority except Principal Commissioner/ Commissioner, i.e., appeal cannot be filed to Commissioner (Appeal) if the order is passed by Principal Commissioner/ Commissioner. In this case appeal need to be filed directly to Custom, Central Excise and Service Tax Appellate Tribunal (CESTAT).

(B) Time Limit for filling appeal : The appeal has to be filed within 2 months from the date of receipt of order from such adjudicating authority.

Extension of time limit allowed : The Commissioner (Appeal) may allow a further period of 1 month, if sufficient cause for late filing of appeal is shown and proved to him.

(C) Documents to be filed : Following documents need to be filed with the Ld. Commissioner (Appeal) IN DUPLICATE (Three sets of appeals shall be prepared out of which 2 will be submitted to Commissioner (Appeal) and one will be with the appellant):

1. Form ST-4 : This is the form for filing appeal. All particulars shall be filed with utmost care. Format is as below:

Form of Appeal to the Commissioner of Central Excise (Appeal) under Sec. 85 of the Finance Act, 1994 (32 of 1994)

BEFORE THE COMMISSIONER OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX (APPEALS), (Place)

1No. of 2016It will be blank. Office of Commissioner (Appeal) will allot Appeal No. in this column.
2Name and Address of the Applicants
3Designation and address of the Officer passing the decision or Order appealed against and the date of decision or Order
4Date of Communication of the decision or Order appealed against to the appellant
5Address to which notices may be sent to the appellant
5A
(i)Period of Dispute
(ii)Amount of Service Tax, if any demanded for the period mentioned in column (i)
(iii)Amount of Refund, if any claimed for the period mentioned in column (i)
(iv)Amount of Interest
(v)Amount of Penalty
(vi)Value of the Taxable Service for the period mentioned in column(i)
6Whether Service Tax or Penalty or Interest or all three have been deposited?
6AWhether Appellant wishes to be heard in Person
7Relief Claimed in Appeal

Necessary court fees (generally Rs. 5/-) shall be affixed on Form ST-4.

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 Ld. Commissioner (Appeal) may be pleased to:

(a) Set aside that part of the impugned Order in Original No. dated , passed by the Ld. Additional Commissioner, Central Excise & Service Tax Commissionerate, (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 2 months from the date of receipt of order of adjudicating authority but before expiry of one month thereafter, 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 COMMISSIONER OF CENTRAL EXCISE, CUSTOMS & SERVICE TAX (APPEALS),

(Place)

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 Ld. Commissioner (Appeal), Customs, Central Excise & Service Tax, (Place) against the impugned Order in Original No. dated communicated vide dated passed by the Additional Commissioner 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 Ld. Commissioner (Appeals), Customs, Central Excise & Service Tax, (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 Ld. Commissioner (Appeals), Customs, Central Excise & Service Tax, may be pleased to consider the prayer of the applicant in granting the condonation for delay of only …. days in appearing before this Ld. Commissioner (Appeals) for justice and equity.

5. It is humbly submitted that this Ld. Commissioner (Appeal), Customs, Central Excise & Service Tax (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 involves 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) : Copy of OIO shall be annexed with the appeal out of which one copy of OIO shall be duly certified. 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:

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

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

d) Service Tax Registration Certificate (ST-2)

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

f) Copy of Service Tax Challan

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

h) Copy of agreement/work order

i) Ledger of parties

j) Form 26AS or TDS Certificates

k) Copy of Financial Statements

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

m) Copy of relevant notification of circular

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

11. Index and Page Numbering: All documents after arranging in sequence shall be duly numbered and an index shall be prepared regarding documents attached in the appeal along with their page number. It will assist both Ld. Commissioner (Appeal) and also the appellant or the counsel, as the case may be.

(D) Hearing of case: After submission of aforesaid documents, it will be checked by office of Commissioner (Appeal) 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 appellant shall either in person or through his counsel shall appear on the given date and time.

Adjournment of hearing: Ld. Commissioner (Appeal) may grant adjournment from time to time at any stage of hearing, if sufficient cause for adjournment shown to him. But the maximum adjournment can be given 3 times only.

(E) Passing of order : After hearing of case, the Ld. Commissioner (Appeal) will pass the order considering the allegation made on 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 CESTAT 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 Ld. Commissioner (Appeal).

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

Also Read:- Appeal to CESTAT under Service Tax

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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