REVISION MECHANISM IN SERVICE TAX

[Dr. Sanjiv Agarwal]

Union Finance Minister announced in his Union Budget 2012-13 speech that ‘Revision Authority and Settlement Commission are being introduced in service tax to help resolve disputes with far greater ease’.

Amendment made by Finance Act, 2012

Section 83 has been amended by the Finance Act, 2012 so as to insert section 35EE of Central Excise Act, 1944 to make it applicable in relation to Service Tax also. This has been done to make the revision mechanism prescribed in section 35 EE of the Central Excise Act, 1944 applicable to service tax, to the extent possible. The entire section 35 EE may not be applicable to Service Tax.

CBEC has explained the reason for introduction explained the revision mechanism in service tax on the lines of Central Excise Act, 1944 in Letter No. 334/1/20120-TRU dated 216.03.2012 as under : 

“At present in service tax, appeals against the order of commissioner (appeals) lie before the Tribunal; whereas in Central Excise, a revision mechanism is available to hear certain specified matters i.e. credit of any duty allowed to be utilized towards payment of excise duty on final products, rebate on exports. It is proposed that this revision mechanism may also be made available for service tax, to the extent applicable. Accordingly, Central Excise provisions relating to revision mechanism (Section 35EE of Central Excise Act) are being made applicable to service tax by amending section 83”.

Provisions of Section 35EE of Central Excise Act, 1944

 (Revision by Central Government)

Following is the text of section 35EE (as amended) –

35EE.  Revision by Central Government -

(1)   The Central Government may, on the application of any person aggrieved by any order passed under section 35A, where the order is of the nature referred to in the first proviso to, sub- section (1) of section 35B, annul or modify such order.

Provided  that the Central Government  may in its discretion, refuse to admit an application in respect of an order where the amount of duty or fine or penalty, determined by such order does not exceed five thousand rupees.]

Explanation.- For the purposes of this sub- section," order passed under section 35A" includes an order passed under that section before the commencement of section 47 of the Finance Act, 1984 (21 of 1984 ) against which an appeal has not been preferred before such commencement and could have been. if the said section had not come into force, preferred after such commencement, to the Appellate Tribunal.

(1A) The Commissioner of Central Excise may, if he is of the opinion that an

order passed by the Commissioner (Appeals) under section 35 A is not

legal or proper, direct the proper officer to make an application on this

behalf to the Central Government for revision of such order.

(2)   An application under sub- section (1) shall be made within three months from the date of the communication to the applicant of the order against which the application is being made:

Provided that the Central Government may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the. aforesaid period of three months, allow it to be presented within a further period of three months.

(3)   An application under sub- section (1) shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf and shall be accompanied by a fee of -

(a)               two hundred rupees, where the amount of duty and interest demanded, fine or penalty levied by the any Central Excise Officer in the case to which application relates is one lakh rupees or less.

(b)               One thousand rupees, where the amount of duty and interest demanded, fine or penalty levied by an Central Excise Officer in the case to which the application relates is more than one lakh rupees.

Provided that no such fee shall be payable in the case of an application referred to in sub-section (1A).

(4)    The Central Government may, of its own motion, annul or modify any order referred to in sub- section (1).

(5)   No order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value shall be passed under this section,-

(a)        in any case in. which an order passed under section 35A has enhanced any penalty or fine in lieu of confiscation or has confiscated goods of greater value, and

(b)        in any other case, unless the person affected by the proposed order has been given notice to show cause against it within one year from the date of the order sought to be annulled or modified.

(6)    Where the Central Government is of opinion that any duty of excise has not been levied or has been short- levied, no order levying or enhancing the duty shall be made under this section unless the person affected by the proposed order is given notice to show cause against it within the time limit specified in section 11A.

Generally, the appeal against the orders of Commissioner of Central Excise (Appeals) lies before the Appellate Tribunal (CESTAT) under section 86 of the Finance Act, 1994 (as amended). But, however with application of section 35 EE of  the Central Excise Act, 1944 (as amended) to the service tax, in certain matters, appeal against such orders may not lie before the Appellate Tribunal but before the revision authority prescribed by the Central Government. Revision Authority shall be an officer of the Central Government of the rank of a Joint Secretary who shall hear the revision application and pass orders as he deems fit on behalf of the Central Government.

As provided in section 35 EE, appeals against all the orders of Commissioner (Appeals) shall lie before the Appellate Tribunal except in the following cases-

(i)  loss of goods in-transit or loss of goods in storage (factory or warehouse)

(ii)  rebate of duty on goods exported or excisable goods used in manufacture of goods which are  exported

(iii) goods exported without payment of duty.

Appeal in aforesaid matters does not lie with the Tribunal. In all other matters, appeal shall lie with Tribunal. This provision shall apply only in case of orders passed by Commissioner (Appeals) and not by Commissioner of Central Excise / Commissioner of Service Tax.

Revision application can be filed by any of the aggrieved person within three months of the communication of the order of Commissioner (Appeals). Thus, matters in relation to export of service or export refund / rebate may be subject to revision mechanism and may not be entertained by Tribunals after Finance Act, 2012.

Application for Revision

Under Central Excise, a revision application is filed in the following manner (which may be modified for service tax matters and notified later) –

(a) Revision application is filed in prescribed form EA-8 in duplicate

(b) It should be signed by the assessee (proprietor / partner of firm/ karta  of HUF/ director or principal officer or authorized  person in case of a company or body corporate)

(c) It should be accompanied by two copies each of -

(i)  order -in -appeal (against which revision is sought)

(ii) order in original (against which appeal was filed before Commissioner (Appeals)

(d) Date of receipt in Revision Authority’s office shall be the date of submission of application

(e) It should be accompanied by prescribed fee ,ie,

Rs 1000          if duty / interest demanded exceeds Rs one lakh.

Rs 250            if duty / interest / penalty is less than Rs one lakh

No fee              if revision application is made by Commissioner of Central Excise.

(f)  Mode of fee payment has not been prescribed so it could be by way of Challan or demand draft.

(g) Revision application should be filed within three months of the communication of order which can be extended by a further period of three months on showing sufficient cause.

(h) Revision can also be sought by Commissioner of Central Excise, if he feels that Commissioner (Appeals) order is not proper. He can direct any officer to file the revision application.

(i)  Central Government may refuse to admit revision application if the amount in question does not exceed Rs 5000.

(j)  Revision application should be submitted  personally or by post to -

Under Secretary

Revenue Application Unit

Department of Revenue, Ministry of Finance

4^th Floor,JeevanDeepBuilding ,

Sansad Marg,

New Delhi– 110001

Central Government can also suo moto Revise

Under sub-section (4) of section 35 EE, Central Government can also on its own motion , modify or annul the order passed by the Commissioner (Appeals). However, no time limit has been prescribed. However, if such notification proposes to enhance the penalty or fine in lieu of confiscation, a show cause notice must be issued to the parties within one year from the date of order sought to be annulled or modified [ section 35 EE (5)]. Also, where Central Government is of the opinion that any duty of excise has not/ short levied, order enhancing the duty can not be made unless the affected person has been given notice to show cause against it [ section 35 EE (6)].

Appeal against Revisionary Order

There is no provision for appeal against the orders of Reversionary Authority  and the remedy  is filing of writ petition before any high court or supreme court.

Quasi Judicial Proceedings

Power of revision u/s 33 EE are quasi judicial and hence principles of natural justice have to be followed and personal hearing is a must. Revisionary orders are not binding on Appellate Tribunal , as it is a quasi judicial authority. Also , order of Appellate Tribunal are not binding on the Central Government (Revisionary Authority ) as Government  has an independent jurisdiction .

 

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