TMI Blog2008 (9) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... d 28.12.2007. 2. Before referring to the contents of the said letter and the background in which the said letter came to be issued it may mentioned that the present appeal was filed without paying the fee. By letter dated 28.4.2008 the defect memo was issued and the appellant was asked to remove the same within ten days from receipt of the notice. Instead of seeking decision on the objection, the appellant filed a writ petition being 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 The writ petition was dismissed as withdrawn with the said liberty.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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also observed that the letter was merely clarificatory and it was not understandable as to how the appellant had concluded that they have been denied the credit which was otherwise admissible to them. Making these observations, he dismissed the appeal. 5. When the above-mentioned miscellaneous application came up for consideration we observed in course of hearing that the appeal itself is not maintainable and we invited learned Counsel 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or a memorandum of cross-objections referred to in sub-section (4)". 8. From a bare glance at the above provisions it would appear that the appellant is required to pay fee between one thousand rupees and ten thousand rupees depending on the amount of service tax and interest demanded and penalty levied by any Central Excise Officer. It may not be out of place to mention here that a new sub-section (6A) was also inserted by the said amendment, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and expressions used but not defined in this Chapter i.e. Chapter 5 of Finance Act, 1994 and defined in the Central Excise Act, 1944 or the rules made thereunder, shall apply, so far as may be, in relation to service tax as they apply in relation to a duty of excise. The words 'decision' or 'order' have not been defined in the Central Excise Act /Rules either. Therefore, they have to be understood in their ordinary literal sense. The term 'adjudicating authority' 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 so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Central Excise, Mumbai vs. Radhaballabh Silk Mills Pvt. Ltd.,- 2004 (169) ELT 165 (Tri.-Mumbai), Commissioner of Central Excise, Raigad vs. Bhushan Steel Strips Ltd. - 2007 (208) ELT 230 (Tri.-Mumbai) and TNT India Private Limited vs. Commissioner of Service Tax, Bangalore - 2007 (5) STR 410 (Tri.-Bang.). In the case of Radhaballabh Silk Mills Pvt. Ltd .(supra) the respondent was informed about the decision on classification and in the circumstances the appeal was held to be maintainable. In Bhushan Steel Strips Ltd. (supra) the respondent was asked by a letter of the Superintendent to reverse credit which was held to be in the nature of decision and hence appealable. In TNT India Private Ltd. (supra) the appellant was directed to discharge service tax liability by the letter in question. It is clear that in all these cases there was determination of the obligation of the appellant and therefore in the facts of the case the appeals were held to be maintainable against a letter. None of the decisions therefore would appear to lend any assistance to the appellant in support of the contention that appeal against the letter in question is maint ..... X X X X Extracts X X X X X X X X Extracts X X X X
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