Appeal to CESTAT relating to Refund - No Fee
THIS is a trivial issue, but has been a matter of litigation for the past 20 years. Any way the Larger Bench of the CESTAT in 2013-TIOL-1103-CESTAT-DEL-LB, emphatically held that in Customs, Excise and Service Tax appeals no fee is payable if the appeals pertain to refunds.
The matter should have ended there, but NO; a litigation loving Government took the matter in appeal to the High Court. The Central Excise Commissioner was aggrieved with the order of the Larger Bench and appealed to the High Court with the usual condonation of delay application.
The High Court found no substantial question of law and therefore dismissed the Commissioner's appeal thereby upholding the order of the Larger Bench of the Tribunal.
Is the Commissioner aggrieved ? The fee collected by the CESTAT does not come to the CBEC or the Commissioner. In what way is the Commissioner concerned with the fee collected or not collected by the CESTAT? Has the Commissioner taken it upon himself to protect the Revenue of the Central Government in all the Departments of the Government? Is the Commissioner Government of India?
The question of law suggested by the Commissioner was
"Whether on the facts and in the circumstances of the case the CESTAT, New Delhi has gravely erred in interpreting the provisions of Section 86 (6) of the Finance Act, 1994 and holding that no fees is payable in filing appeal before the CESTAT relating to refund/rebate of Service Tax, Customs and Central Excise matter depriving the revenue to collect fee from the parties from all over India with regard to filing of appeals in the matters of refund/rebate of Service Tax, Customs and Central Excise matters?"
Mr Commissioner you are a litigant before the CESTAT and the CESTAT is not a source of Revenue for you and you don't collect the fee; so there is no question of depriving you of collecting fees. Of course it will be a good idea to pay a fee to the opposite party in a litigation - frivolous litigation may come down a little if for every appeal before the Tribunal, the Commissioner has to pay a fee (or call it an amount) to the assessee.
In this case, just imagine the amount of time, money and paper the Department has wasted in protecting the fee to be paid to the Tribunal which the Tribunal itself held was not required!
In this case before the High Court, the assessee was not represented. The maximum fee payable for an appeal before the Tribunal is Rs. 10,000/-. He would rather lose the case in the High Court than spend more than the fee payable, if at all, to defend the case.
The Commissioner has no such problems - for him every adverse order should be escalated to the next higher level - after all he is spending our money, not his.
Let us hope the Department does not take this matter to the Supreme Court.