2000 (5) TMI 641 - AT - Central Excise

Tribunal emphasizes payment & procedural compliance in appeal process under Finance Act Section 90

The Tribunal held that the appeal does not cease to exist until full payment is made and form 3 is issued under Section 90 of the Finance Act. The ... KVS Scheme - Withdrawal of appeal Issues:1. Interpretation of Section 90 of the Finance Act regarding the appeal withdrawal process based on issuance of form 2B and form 3 under the KVS Scheme.Analysis:The judgment involves a stay application and appeal arising from an Order-in-Appeal passed by the Collector (Appeals) Hyderabad. The Collector held that the appeal ceases to exist upon issuance of form 2B by the designated authority under Section 90(1) of the Finance Act. The appellant argued that the appeal does not get withdrawn until the Collector issues form 3 for full settlement under Section 90(2). The appellant relied on a previous Tribunal order in a similar case where the Collector's order was set aside, and the matter was remanded for reconsideration. The Tribunal noted the similarity with the previous case and referred to the detailed provisions of Section 90, emphasizing the requirement for issuance of form 3 for final settlement. Since the stage under Section 90(2) had not been reached in the present case, the Tribunal concluded that the appeal does not cease to exist until full payment is made and form 3 is issued. Consequently, the Tribunal allowed the stay application, waived the pre-deposit amount, stayed recovery, and remanded the appeal to the Collector (Appeals) for fresh consideration.The Tribunal's decision was based on a thorough analysis of the provisions of Section 90 of the Finance Act and the requirements under the KVS Scheme. The Tribunal clarified that under the Scheme, a declarant must make a declaration to the designated authority, following which the authority determines the amount payable for full settlement. Subsequent to payment and proof submission by the declarant, the authority is mandated to issue form 3 certifying the full and final settlement. The Tribunal highlighted that appeal withdrawal, as per Section 90(4), occurs only upon the issuance of form 3 after full payment. Since the declarant had not reached this stage in the present case, the Tribunal held that the appeal continues before the Commissioner (Appeals). The Tribunal allowed the stay application, considering the appellant's deposit under form 2B, and directed the Collector (Appeals) to address any delay in issuing form 3 for final settlement. The Tribunal emphasized that the plea for form 3 issuance should be raised before the lower appellate authority for due consideration.In conclusion, the Tribunal's decision clarified the procedural requirements under Section 90 of the Finance Act and the KVS Scheme for appeal withdrawal based on form 2B and form 3 issuance. The judgment underscored the necessity of full payment and form 3 issuance for appeal withdrawal, ensuring a comprehensive understanding of the statutory provisions and procedural obligations for taxpayers under the Scheme. The Tribunal's ruling provided guidance on the correct interpretation and application of the law in similar cases, emphasizing the importance of procedural compliance and due process in appeal proceedings before the Collector (Appeals).