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TMI Blog2008 (9) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... g WP (C) No. 5570/2008 in the Delhi High Court. From the order of the High Court dated 4.8.2008 it appears that when the writ petition came up for hearing the appellant sought permission to withdraw the same with liberty to file application before the Tribunal to consider its request for non-payment of fee. The writ petition was dismissed as withdrawn with the said liberty. The High Court observed that if such an application is made, the Tribunal shall hear the petitioner and pass appropriate order in accordance with law. The High Court clarified that it has not expressed any opinion on the merits of the matter. The appellant thereafter filed the present miscellaneous application seeking an order that no fee is payable on appeal in terms of Section 86 of the Finance Act, 1994 as the appeal does not involve any demand of service tax, interest or penalty by any Central Excise Officer. The application came up for hearing on 29.8.2008 and the matter was heard at length. 3. At this stage the factual background giving rise to the appeal before the Commissioner (Appeals) and the present appeal before the Tribunal may briefly be mentioned. The appellant is engaged in the business of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel to address us on the point of maintainability, for, if the appeal itself is not maintainable, the issue as to whether the appellant is required to pay any fee may not arise for decision. It is well settled that Courts including tribunals performing quasi-judicial functions are not supposed to decide academic issues unless decision on the issue is necessary for deciding the appeal etc. Learned Counsel initially took the stand that in view of the direction of the Delhi High Court, the Tribunal is required to record finding on the point of payability of fee and we accordingly heard the learned Counsel on the point. Counsel however also addressed us on the point of maintainability at some length. 6. Section 86 of the Finance Act, 1994 provides for appeals to Appellate Tribunal i.e. Customs, Excise & Service Tax Appellate Tribunal (CESTAT). While sub-section (1) refers to appeal by the assessee, sub-sections (2), 2(A) and (3) deal with appeals by the Department. Sub-section (4) provides for cross-objections by the Department and the assessee, as the case may be, on receipt of notice of any appeal against part of the order of the Commissioner of Central Excise, Commissioner (Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndment, vide Finance (No. 2) Act, 2004, requiring payment of a fee of five hundred rupees on miscellaneous applications for stay or rectification of mistake application or for any other purpose as well as for restoration of appeal or an application. It is evident from the provisions of sub-section (6) of Section 86 as they originally stood and stand now that if an assessee desires to prefer appeal in the Appellate Tribunal, he is required to pay the requisite fee. They do not envisage any exemption except in case of appeals by the department or cross-objections by either the assessee or the department. 9. Learned Counsel for the appellant, however, submitted that in terms of Section 86 (6) the appellant is required to pay fee only when there is demand of service tax interest and penalty- the amount thereof determines the amount of fee. Where there is no such demand by way of service tax and interest or penalty, no fee would be payable. The submission is wholly misconceived and, if we may say so, self-defeating. This, indeed, is one of the reasons why we are inclined to think that the appeal is not maintainable-that there must be a demand by way of service tax or interest or penalt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rity' however has been defined under section 2(a) of the Central Excise Act to mean any authority competent to pass any order or decision under the Act (not including the Central Board of Excise and Customs, Commissioner (Appeals) or the Appellate Tribunal). Section 11A of Central Excise Act provides for issuance of show cause notice by Central Excise Officer in cases of non-levy or short-levy of duty, excise duty or short-payment or the refund of duty or excise duty and adjudication of dispute/demand. Similarly Section 11B provides for an order on the refund application of the assessee and determination of the amount of refund. Section 33 provides for adjudication by way of confiscation and imposition of penalty. These are some of the instances of adjudication and passing decision or order by the Central Excise Officer as adjudicating authority. These orders and decisions may be challenged by way of appeal to the Commissioner (Appeals), and where the Adjudicating authority is the Commissioner, to the Appellate Tribunal. These provisions are mutatis-mutandis applicable to proceedings under the Finance Act 1994 with respect to service tax. It is thus clear unless there is an adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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