2013 (9) TMI 1009 - AT - Central Excise

Maintainability of appeal - Section 35A of CEA,1944 - Held that - second appeal cannot lie under Section 35A of CEA, 1944 against the same Order-in-Original which has been challenged earlier before the Commissioner (Appeals) by filing a proper appeal in the prescribed format in Form EA-1 under Section 35A on various grounds; and after due consideration of all grounds raised in the said Order-in-Original and observing principles of natural justice, in exercising its appellate jurisdiction, the ld. Commissioner (Appeals) has disposed of the appeal on merit. I agree with the view of the ld. Commissioner (Appeals) that in absence of any statutory provision, the direction of the Committee on Disputes (constituted for resolving the dispute between Public Sector Undertaking and Government Department, in carrying out the litigation before Tribunal and other higher judicial fora), to the appellant to approach the Commissioner (Appeals) for resolution of dispute, which resulted into filing the second appeal under Section 35A of the Central Excise Act, 1944, against the same Order-in-Original, is not binding on him being devoid of any authority under the law. Second appeal had been filed by the appellant beyond the statutory and condonable limit of 90 days (60 30) and hence not maintainable as the Commissioner (Appeals) has not been vested with the power to condone delay in filing the appeal beyond thirty days in addition to the statutory period of sixty days, in view of the principle of law settled by the Hon ble Supreme Court in Singh Enterprises case (2007 (12) TMI 11 - SUPREME COURT OF INDIA). - Decided against assessee.

Summary

Issues:
1. Maintainability of the second appeal under Section 35A of CEA, 1944.
2. Authority of the Committee on Disputes to direct remand of the case.
3. Jurisdiction of the ld. Commissioner (Appeals) to entertain the second appeal.
4. Time limitation for filing the second appeal.

Issue 1: Maintainability of the second appeal under Section 35A of CEA, 1944:
The appellant, a Public Sector Undertaking, filed a refund claim for excess duty paid, which was initially rejected on the grounds of unjust enrichment. The case went through various levels of litigation, culminating in a de novo order rejecting the refund claim again. The appellant filed a second appeal before the ld. Commissioner (Appeals) against the same Order-in-Original dated 18-5-2010. The ld. Commissioner (Appeals) rejected the second appeal, stating that no second appeal can lie against the same Order-in-Original without a remand order from a higher appellate forum. The Tribunal upheld this decision, emphasizing that the second appeal was not maintainable under Section 35A of CEA, 1944, as it had already been challenged and decided earlier.

Issue 2: Authority of the Committee on Disputes to direct remand of the case:
The Committee on Disputes directed the appellant to approach the ld. Commissioner (Appeals) for resolving the dispute, despite declining permission to pursue the appeal before the Tribunal. The ld. Commissioner (Appeals) concluded that the Committee on Disputes lacked the authority to remand the case to the adjudicating or appellate authority. Citing legal provisions and judicial pronouncements, the ld. Commissioner (Appeals) held that the direction from the Committee on Disputes was not binding and lacked legal basis.

Issue 3: Jurisdiction of the ld. Commissioner (Appeals) to entertain the second appeal:
The ld. Commissioner (Appeals) rejected the second appeal, stating that no fresh appeal can be filed against the same Order-in-Original without a remand order from a higher appellate forum. The ld. Commissioner (Appeals) emphasized that he could not entertain two appeals against the same Order-in-Original by the same appellant and pass two different orders. This decision was upheld by the Tribunal, affirming the jurisdictional limitations of the ld. Commissioner (Appeals).

Issue 4: Time limitation for filing the second appeal:
The ld. AR for the Revenue argued that the second appeal was filed beyond the statutory period of 60 days and the condonable period of 30 days, making it not maintainable. Citing a Supreme Court decision, the ld. AR contended that the appeal was barred by limitation prescribed under Sec. 35A of CEA, 1944. The Tribunal agreed, stating that the second appeal was filed beyond the statutory and condonable limit of 90 days, making it not maintainable due to time constraints.

In conclusion, the Tribunal upheld the decision of the ld. Commissioner (Appeals) to reject the second appeal, emphasizing the non-maintainability of the appeal under Section 35A of CEA, 1944, the lack of authority of the Committee on Disputes to direct remand, and the time limitation for filing the appeal. The appellant's appeal was dismissed based on these grounds.