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17 Sep 2014

Clarification on Pre-deposit of amount in relation to Appeals in Service Tax

Owing to the doubts arisen after the introduction of mandatory pre-deposit scheme in Service tax, Excise and Customs appeals before Commissioner (Appeals) and CESTAT, CBEC has clarified on following issues vide Circular 984/08/2014-CX dated 16 September 2014 as under:

S. no.
Issue
Clarification
1
Quantum of pre-deposit
(i)
In case of appeal before CESTAT against the order of Commissioner (Appeals)
10 per cent of the amount of demand or penalty, as the case may be, confirmed by Commissioner (Appeals)
  • Accordingly, in case where Commissioner (Appeals) has confirmed a demand of say 1 cr. along with equivalent penalty, then amount of pre-deposit will be 10 percent of 1 cr.
  • In case where penalty alone is confirmed by Commissioner (Appeals) but under different provisions say 1 cr. under section 78 and 10,000 under section 77, then amount of pre-deposit will be 10 per cent of aggregate amount of penalties i.e. 10 percent of 1,00,10,000
2
Payments made during investigation or audit
(i)
Payment made during investigation or audit i.e. prior to date on which appeal is filed
Such payment, to the extent of 7.5 per cent or 10 per cent subject to a limit of 10 cr., will be considered as payments towards pre-deposit for filing the appeals
However, any payment in excess of 7.5 per cent or 10 per cent subject to a limit of 10 cr., will not be considered as payments towards pre-deposit for filing the appeals
(ii)
What will be the date of deposit of payment made during investigation or audit for the purpose of pre-deposit
Date of filing of appeal will be date of deposit of such payments
3
Recovery of amount during pendency of appeals
(i)
Can department invoke recovery proceedings for amounts in excess of 7.5 per cent or 10 per cent, subject to a limit of 10 cr.
In respect of appeals filed after 06 August 2014 i.e. after provisions of mandatory pre-deposit, no recovery proceedings can be initiated by department in respect of balance amounts of demands of tax and penalties
(ii)
Documents required to be submitted to hold recovery
Proof of payment of 7.5 per cent or 10 per cent, subject to a limit of 10 cr.; and
Copy of appeal memo
(iii)
When can department initiate recovery
Recovery can be initiated only after disposal of appeal against the assessee unless order of Commissioner (Appeals) or CESTAT is not stayed by higher court/authority
4
Refund of pre-deposit
(i)
Can a assessee apply for refund of pre-deposit
Yes, once the appeal is decided in favor of assessee, he can apply for refund of amount of pre-deposit
(ii)
Time limit for filing the refund
Refund of pre-deposit will not be governed by the provisions of section 11B of Central Excise Act. Therefore, no time limit applies
(iii)
In how much time refund has to be processed by department
15 days from receipt of application for refund of pre-deposit
Refund will not be withheld by department even if department contemplates to file appeal against the order
However, refund will be withheld if order is stayed by higher court/authority
(iv)
Is department liable to pay interest
6 per cent
(v)
Documents required for filing the refund
Refund can filed in form of a simple letter requesting refund of amount along with self attested copy of order and document evidencing payment of such pre-deposit
5
Procedure and manner of pre-deposit
(i)
Can payment be made through electronic mode
Yes
(ii)
What amendments are required in appeal form
Relevant columns of appeal form would now be referred to indicate amount of pre-deposit and proofs thereof