CESTAT APPEALS: SOME FACTS

[Dr. Sanjiv Agarwal]

Appeals to Appellate Tribunal (Section 86)

Section 86 provides a second stage appellate platform for making appeal against the orders under section 73, 83A or 85.

According to Section 86, any assessment order passed by Commissioner of Central Excise under section 73 or Section 83A or orders of revision by Commissioner of Central Excise under Section 84 or orders of the Commissioner of Central Excise (Appeals) under Section 85 are appealable before the Appellate Tribunal (CESTAT) by any of the aggrieved parties i.e., assessee, Commissioner of Central Excise or the Board.

Limitations of CESTAT

CESTAT functions with the following limitations as it cannot -

(i)    grant compensation owing to unlawful action of revenue authorities.

(ii)   review its own order as any quasi judicial authority cannot review its own order.

(iii)  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.

(iv)  comment on legitimacy of statute and has to presume legal validity of the provisions of Act and Rules.

(v)   punish for its own contempt but has to forward it to high court for its consideration.

(vi)  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.

(vii) over rule any high court judgment and are bound by judgments of high courts and Supreme Court.

Fees payable for Appellate Tribunal Appeals

The Finance Act, 2004 had amended upwards the fees payable for filing an appeal to Appellate Tribunal. Prior to enactment of Finance Act, 2004, section 86(6) prescribed a fee of Rs. 200 to be accompanied alongwith Form of appeal to Appellate Tribunal under Section 86. Section 86(6) was amended to enhance the fees as under to be effective from a notified date, i.e., 1st November, 2004:

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

 Notification No. 31/2004-ST, dated 25-10-2004 notified 1st November, 2004 as the effective date for aforementioned fees. Thus, w.e.f. 1st November, 2004, above fee slabs shall be applicable for filing appeals before CESTAT.

A new sub-section (6A) had been inserted by the Finance Act, 2004 which provides that every application to Appellate Tribunal for the following purposes should be accompanied by a fee of Rs. 500 —

(a)  in an appeal for grant of stay or for rectification of mistake or for any other purpose.

(b)  for restoration of an appeal or an application.

No fee shall, however, be payable in case of appeal filed by Department or for filing a memorandum of cross objections. Also, it has been clarified that no fee is required to be collected or paid on adjournment or pass over or memorandum under Rule 2B. (Refer CESTAT Public Notice No. 1/2005, dated 11-2-2005)

Revision in monetary limits for appeals to Cestat/Courts

Vide Circular No. M F (DR) F. No. 390/Misc/163/ 2010-JC dated 17.8.2011, the monetary limits for filing departmental appeals have been revised w.e.f. 1.9.2011.

In case of departmental appeals, the monetary limits for filing appeals in various forums has been revised w.e.f. 1-9-2011. While the duty, interest or penalty involved should be minimum Rs. 5,00,000 for appeal to CESTAT, same should be Rs. 10 lakh and Rs. 25 lakh in case of appeal before High Court and Supreme Court, respectively. It has also been clarified that the determinative element for coverage would be duty/tax under dispute' and that monetary limit would be applicable on the disputed duty and not on total duty demanded in a case. The monetary limit will not apply to cases challenging adverse judgments relating to constitutional validity of provisions of Act or Rule or where Notification, instruction, order or Circular has been held illegal! ultra vires. It would also not apply for application to Revisionary Authority. In cases of audit objections also, the appeals would be subjected to such monetary limits.'

MIS at CESTAT

CESTAT vide its Order No. 1 dated 16.11.2012 has initiated computerization programme to improve its management of information. Accordingly,

a)  All counsels / representations appearing regularly are required to furnish an information sheet in the central registry. Such person will be assigned a code from data base.

b)  Pin codes, email addresses and mobile numbers of appellant and to the extent possible of respondent are mentioned correctly in appeal memorandum / cross objections.

c)  Counsel / authorized representative appearing for the first time in court should file information sheet with the court master.

d)  Whenever a counsel / representative is engaged by way of replacement, it is necessary that name of old counsel or representative gets replaced in registry.

Listing to Appeals

In Cestat, listing of appeals and stay matters shall be listed in chronological order strictly in accordance with their age. Appeals remanded by Supreme Court or High Court should be listed on the top of cause list chronologically. Also bunch of appeals involving same issue will be treated as one case.

Bar on Practice

Bar on practice by Cestat members applies to retired/resigned/discharged/probationary members, besides bar on practice by ex-president, vice president and members of Cestat [Vide MOF (DR) Instruction No. A.12026/1/2011-AdJC (Cestat) dated 12.11.2012].

Monetary limit for Single Bench

Finance Act, 2013 has amended section 35D of the Central Excise Act, 1944 w.e.f. 10.05.2013 with a view to enhance the monetary limit of the single Bench of the Appellate Tribunal to hear and dispose of appeals from Rs. ten lakh to Rs. fifty lakhs.

New Appeal Forms

Vide Notification No. 5/2013-ST dated 10.04.2013, appeal forms viz, ST-5, ST-6 and ST-7 have been substituted w.e.f. 1.6.2013. All appeals filed in the Tribunal on or after 1.6.2013 would be required to be filed in new forms only. These forms contain additional information which could lead to faster communication between the Tribunal Registry and the appellant, bunching (Clubbing) of cases and would also facilitate creation of a comprehensive data base. Salient features of new forms have been explained by CBEC vide Circular No. 969/03/2013-CX dated 11.04.2013, text of which can be referred to in Annexure 19 in Part IV of the Book.