Order of provisional attachment passed u/s 73C of FA, 1994 is not appealable to CESTAT
THE King of good times has everything going bad - even the spirits have gone.
Invoking the powers under section 73C of the Finance Act, 1994, the Commissioner of Service Tax-I, Mumbai had provisionally attached 10 aircraft belonging to the appellant so as to safeguard the interest of Revenue against default in payment of Service Tax by the appellant.
The appellant is before the CESTAT against this order.
The Revenue representative raised a preliminary objection that the appeal is not maintainable since as per section 86 of the Finance Act, 1994 only orders passed under section 73 or section 83A are appealable to the CESTAT. Inasmuch as the present order had been passed under section 73C the appeal against the same is not maintainable.
The appellant submitted that the order passed u/s 73C should be deemed to have been passed under section 83A and, therefore, the appeal would be maintainable before the Bench. The decision of the Bench in Standard Chartered Bank & Ors () is also adverted to.
The Bench after referring to the provisions of s. 86, s.73 and s. 73C of the Finance Act, 1994 observed -
"6.2 From the wordings of the said Section, it is clear that action under section 73C is taken pending any proceedings under section 73 or 73A. In other words, during the pendency of the proceedings where service tax liability or penalty has to be adjudged, as a measure of protection of the interests of Revenue, attachment of property has been permitted under section 73C. Section 73C per se does not empower the Commissioner of Central Excise Commissioner or any other officer to determine the service tax liability or penalties. That has to be adjudged under the provisions of Section 73 or 73A or any other provisions of the law as provided for.
7. Therefore, we are of the considered view that the order passed under section 73C of the Finance Act, 1994 is not appealable to this Tribunal and, therefore, the present appeal filed by the appellant is not maintainable…."
Accordingly, the appeal was dismissed.