Service Tax Act : Appeals - Section 84, 85 and 86

As on 24.10.2013

12[84. Appeals to Commissioner of Central Excise (Appeals). -

12 Substituted (w.e.f. 19.08.2009) by s.113 of the Finance (No 2) Act, 2009 (33 of 2009).

(1) The Commissioner of Central Excise may, of his own motion, call for and examine the record of any proceedings in which an adjudicating authority subordinate to him has passed any decision or order under this Chapter for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct such authority or any Central Excise Officer subordinate to him to apply to the Commissioner of Central Excise (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Commissioner of Central Excise in his order.

(2) Every order under sub-section (1) shall be made within a period of three months from the date of communication of the decision or order of the adjudicating authority.

(3) Where in pursuance of an order under sub-section (1), the adjudicating authority or any other officer authorised in this behalf makes an application to the Commissioner of Central Excise (Appeals) within a period of one month from the date of communication of the order under sub-section (1) to the adjudicating authority, such application shall be heard by the Commissioner of Central Excise (Appeals), as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Chapter regarding appeals shall apply to such application.

Explanation. - For the removal of doubts, it is hereby declared that any order passed by an adjudicating officer subordinate to the Commissioner of Central Excise immediately before the commencement of clause (C) of section 112 of the Finance (No. 2) Act, 2009, shall continue to be dealt with by the Commissioner of Central Excise as if this section had not been substituted.]

85. Appeals to the 1[Commissioner] of Central Excise (Appeals). -

1. Designation substituted vide s.70 of the Finance Act, 1995 (22 of 1995). Substituted for " Assistant Commissioner of Central Excise or as the case may be , the Deputy Commissioner of Central Excise " by the Finance Act 2005, w.e.f 13-5-2005

2[(1) Any person aggrieved by any decision or order passed by an adjudicating authority subordinate to the Commissioner of Central Excise may appeal to the Commissioner of Central Excise (Appeals).]

2 Substituted (w.e.f. 13.05.2005) by s. 88 of the Finance Act, 2005 (18 of 2005).

(2) Every appeal shall be in the prescribed form and shall be verified in the prescribed manner.

(3) An appeal shall be presented within three months from the date of receipt of the decision or order of 3[such adjudicating authority] relating to service tax, interest or penalty under this Chapter 4[, made before the date on which the Finance Bill, 2012 receives the assent of the President]

Provided that the 5[Commissioner] of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three months.

3 Substituted (w.e.f. 13.05.2005) by s. 88 of the Finance Act, 2005 (18 of 2005).
4 Inserted w.e.f 28.5.2012 by the Finance Act, 2012
5 Designation substituted vide s.70 of the Finance Act, 1995 (22 of 1995)

6[(3A) An appeal shall be presented within two months from the date of receipt of the decision or order of such adjudicating authority, made on and after the Finance Bill, 2012 receives the assent of the President, relating to service tax, interest or penalty under this Chapter:

6 Inserted w.e.f 28.5.2012 by the Finance Act, 2012

Provided that the Commissioner of Central Excise (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of two months, allow it to be presented within a further period of one month.";]

(4) The 7[Commissioner] of Central Excise (Appeals) shall hear and determine the appeals and, subject to the provisions of this Chapter, pass such orders as he thinks fit and such orders may include an order enhancing the service tax, interest or penalty :

7 Designation substituted vide s.70 of the Finance Act, 1995 (22 of 1995)

Provided that an order enhancing the service tax, interest or penalty shall not be made unless the person affected thereby has been given a reasonable opportunity of showing cause against such enhancement.

(5) Subject to the provisions of this Chapter, in hearing the appeals and making orders under this section, the 8[Commissioner] of Central Excise (Appeals) shall exercise the same powers and follow the same procedure as he exercise and follows in hearing the appeals and making orders under the 9[Central Excise Act, 1944] (1 of 1944).

8 Designation substituted vide s.70 of the Finance Act, 1995 (22 of 1995)
9 Central Excise and Salt Act, 1944 renamed by s.71 of the Finance (No.2) Act, 1996 (33 of 1996).

86. Appeals to Appellate Tribunal

(1) Any assessee aggrieved by an order passed by a 10[Commissioner] of Central Excise under 1[section 73 section 83A 2[xxxx]], or an order passed by a 3[Commissioner] of Central Excise (Appeals) under section 85, may appeal to the Appellate Tribunal against such order 4 "within three months of the date of receipt of the order".

10 Designation substituted vide s.70 of the Finance Act, 1995 (22 of 1995)
1 Substituted (w.e.f. 13.05.2005) by s. 88 of the Finance Act, 2005 (18 of 2005).
2 Omitted (w.e.f. 19.08.2009) by s.113 of the Finance (No 2) Act, 2009 (33 of 2009).
3 Designation substituted vide s.70 of the Finance Act, 1995 (22 of 1995)
4 Inserted w.e.f 28.5.2012 by the Finance Act, 2012

5[(1A) (i) The Board may, by notification in the Official Gazette, constitute such Committees as may be necessary for the purposes of this Chapter.
(ii) Every Committee constituted under clause (i) shall consist of two Chief Commissioners of Central Excise or two Commissioners of Central Excise, as the case may be.]

5 Substituted (w.e.f. 16.07.2001) by s.137 of the Finance Act, 2001 (14 of 2001)

6[(2)The 7[Committee of Chief Commissioners of Central Excise] may, if it objects to any order passed by the Commissioner of Central Excise under 8[section 73 or section 83A 9[xxxx]], direct the Commissioner of Central Excise to appeal to the Appellate Tribunal against the order.

6 Substituted (w.e.f. 11.05.2007) by s. 135 of the Finance Act, 2007 (22 of 2007)
7 Substituted (w.e.f. 13.05.2005) by s. 88 of the Finance Act, 2005 (18 of 2005)
8 Substituted (w.e.f. 13.05.2005) by s. 88 of the Finance Act, 2005 (18 of 2005)
9 Omitted (w.e.f. 19.08.2009) by s.113 of the Finance (No 2) Act, 2009 (33 of 2009).

10[Provided that where the Committee of Chief Commissioners of Central Excise differs in its opinion against the order of the Commissioner of Central Excise, it shall state the point or points on which it differs and make a reference to the Board which shall, after considering the facts of the order, if is of the opinion that the order passed by the Commissioner of Central Excise is not legal or proper, direct the Commissioner of Central Excise to appeal to the Appellate Tribunal against the order.

10 Inserted (w.e.f. 10.05.2008) by s. 90 of the Finance Act, 2008 (18 of 2008)

11[(2A) The Committee of Commissioners may, if he objects to any order passed by the Commissioner of Central Excise (Appeals) under section 85, direct any Central Excise Officer to appeal on his behalf to the Appellate Tribunal against the order:]

11 Substituted (w.e.f. 11.05.2007) by s. 135 of the Finance Act, 2007 (22 of 2007)

12[Provided that where the Committee of Commissioners differs in its opinion against the order of the Commissioner of Central Excise (Appeals), it shall state the point or points on which it differs and make a reference to the jurisdictional Chief Commissioner who shall, after considering the facts of the order, if is of the opinion that the order passed by the Commissioner of Central Excise (Appeals) is not legal or proper, direct any Central Excise Officer to appeal to the Appellate Tribunal against the order.

12 Inserted (w.e.f. 10.05.2008) by s. 90 of the Finance Act, 2008 (18 of 2008).

Explanation. - For the purposes of this sub-section, "jurisdictional Chief Commissioner" means the Chief Commissioner having jurisdiction over the concerned adjudicating authority in the matter.]]

13[(3) "Every appeal under sub-section (2) or sub-section (2A) shall be filed within four months from the date on which the order sought to be appealed against is received by the Committee of Chief Commissioners or, as the case may be, the Committee of Commissioners.";]

13 Substituted w.e.f. 28.5.2012 by the Finance Act, 2012
6. the word, brackets and figure "sub-section (3)", substituted by the Finance Act ,2013 w.e.f 10.05.2013.

(4) 14[The Commissioner of Central Excise or 15[any Central Excise Officer subordinate to him] or the assessee, as the case may be, on receipt of of a notice that an appeal against the order of the Commissioner of Central Excise or the Commissioner of Central Excise (Appeals) has been preferred under sub-section (1) or sub-section (2) or sub-section (2A)] by the other party may, notwithstanding that he may not have appealed against such order or any part thereof, within forty-five days of the receipt of the notice, file a memorandum of cross-objections, verified in the prescribed manner, against any part of the order of the 1[Commissioner] of Central Excise or the 2[Commissioner] of Central Excise (Appeals), and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3).

14 Substituted (w.e.f. 16.07.2001) by s.137 of the Finance Act, 2001 (14 of 2001)
15 Substituted (w.e.f. 13.05.2005) by s. 88 of the Finance Act, 2005 (18 of 2005).
1 Designation substituted vide s.70 of the Finance Act, 1995 (22 of 1995)
2 Designation substituted vide s.70 of the Finance Act, 1995 (22 of 1995)

(5) The Appellate Tribunal may admit an appeal or permit the filing of a memorandum of cross-objections after the expiry of the relevant period referred to in 6[sub-section (1) or sub-section (3)]" or sub-section (4) if it is satisfied that there was sufficient cause for not presenting it within that period.

3[(6) An appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner and shall, irrespective of the date of of demand of service tax and interest or of levy of penalty in relation to which the appeal is made, be accompanied by a fee of, -

3 Substituted (w.e.f. 1.11.2004 vide Notfn. No. 31/2004-ST, dtd. 25.10.2004 by s. 90 of the Finance (No.2) Act, 2004 (23 of 2004))

a) where the amount of service tax and interest demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is five lakh rupees or less, one thousand rupees;
b) where the amount of service tax and interest demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is more than five lakh rupees but not exceeding fifty lakh rupees, five thousand rupees;
c) where the amount of service tax and interest demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is more than fifty lakh rupees, ten thousand rupees:

Provided that no fee shall be payable in the case of an appeal referred to in sub-section (2) or sub-section (2A) or a memorandum of cross-objections referred to in sub-section (4).

(6A) Every application made before the Appellate Tribunal, -

a) in an appeal for grant of stay or for rectification of mistake or for any other purpose; or
b) for restoration of an appeal or an application, shall be accompanied by a fee of five hundred rupees :

Provided that no such fee shall be payable in the case of an application filed by the Commissioner of Central Excise or Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise, as the case may be under this sub-section.]

(7) Subject to the provisions of this Chapter, in hearing the appeal and making orders under this section, the Appellate Tribunal shall exercise the same powers and follow the same procedure as it exercise and follows in hearing the appeals and making orders under the 4[Central Excise Act, 1944] (1 of 1944).

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