Applicability of Section 35C of CEA, 1994 to Service tax appeals before the Tribunal

PJ/Case Laws/2011-12/1556

Case: INDO WORTH (INDIA) LTD. versus COMMISSIONER OF CENTRAL EXCISE, NAGPUR

Citation: 2012 (25) S.T.R. 98 (Tri. - Mumbai)

Issue cum- Brief Facts:- Whether Section 86(7) if Finance Act, 1994 authorizes the Tribunal to adopt provisions of Section 35C of the Central Excise Act for the purpose of hearing and making orders on service tax appeals? The issue arose at admission stage of appeal before the Tribunal.

Appellant’s Contention:- Appellant refers to the provisions of Section 86 of the Finance Act, 1994 and those of Section 35B of the Central Excise Act, 1944 and submit that there is no provision similar to the second proviso to sub-section (1) of Section 35B under Section 86 and, therefore, in respect of a service tax appeal coming within the jurisdiction of Single Member, the Bench has no discretion to refuse to admit the appeal. In this connection, the learned counsel relies on the Tribunal's decision in Asiatic Enterprises v. Commissioner [2008 (224) E.L.T. 406 (TH. - Kolkata)].

Respondent’s Contention:- Revenue endeavored to derive the power for this Bench to refuse admission to the present appeals, from sub-section (7) of Section 86 of the Finance Act, 1994.

Reasoning of Judgment:- The Tribunal found that the appellant has stated the legal position correctly. The argument of Revenue is not sustainable for two reasons. Firstly, Section 35B of the Central Excise Act is not one of the provisions specified in Section 83 of the Finance Act for applicability to service tax appeals. Secondly, sub-section (7) of Section 86 of the Finance Act, 1994 purports to authorize the Appellate Tribunal to exercise the same powers and follow the same procedures as it exercises and follows in hearing the appeals and making orders under Central Excise Act, 1944 in the matter of hearing appeals and making orders in Service Tax cases. The phrase 'hearing the appeals and making orders' appearing in sub-section (7) of Section 86 ibid is significant for its import. It would mean that the provision is applicable to the context of hearing a service tax appeal on merits and passing orders thereon. Obviously, sub-section (7) of Section 86 ibid authorizes the Tribunal to adopt the provisions of Section 35C of the Central Excise Act, for the purpose of hearing and making orders on service tax appeals.

The Tribunal found that the same view has been taken by the learned Single Member in the case of Asiatic Enterprises. The present appeals, therefore, do not require admission. At this stage, the Appellant submits that three more appeals of the same party viz appeal Nos. S.T./91, 108 and 268/10 are pending before this Bench involving a common issue of refund. Direction given to club present appeals with the above three appeals for the purpose of final hearing.

Decision:- Appeal allowed.

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PJ/Case Laws/2011-12/1556

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