2016 (12) TMI 1664 - AT - Central Excise

Validity of the Notification dated 27.03.2008 - jurisdiction - Held that - the constitutional validity of the N/N. 21/2008 dated 27.03.2008 is in question and the same is pending before the Hon ble High Court of Sikkim - the validity of the Notification dated 27.03.2008 can be decided only by the Hon ble High Court and certainly not by the Appellate Tribunal which has no power - Appeal allowed - decided in favor of appellant.

Summary

Issues involved:
Challenge to the validity of a notification dated 27.03.2008 providing for a refund of excise duty, impact on the appellant's claim for refund, jurisdiction of the Appellate Tribunal in deciding the validity of the notification.

Analysis:

1. Challenge to the validity of the Notification dated 27.03.2008:
The appellant challenged the validity of the Notification dated 27.03.2008 before the Hon'ble High Court of Sikkim in W.P.No.41/2015. The High Court accepted the suggestions of the department's counsel to direct the CESTAT to dispose of the pending appeals to settle the disputed facts and law. This challenge raised questions regarding the constitutional validity of the Notification.

2. Impact on the appellant's claim for refund:
The Appellant, engaged in manufacturing medicines in Sikkim, initially benefited from a 100% exemption from excise duty under a government policy. However, an amended Notification on 27.03.2008 limited the refund benefit to only 56%, causing the Appellant to lose out on 44% of the refund amount. The Competent Authority refused to refund the remaining 56%, stating that the earlier refund needed to be re-credited due to the amendment. This led the Appellant to file the present appeals seeking redress.

3. Jurisdiction of the Appellate Tribunal:
The Tribunal, after considering the arguments and circumstances, recognized that the constitutional validity of the Notification No.21/2008 dated 27.03.2008 was in question and pending before the High Court of Sikkim. The Tribunal acknowledged its lack of power to decide on the validity of the Notification, as that fell within the High Court's jurisdiction. Therefore, the Tribunal granted the Appellant the liberty to return after obtaining the final verdict from the High Court, within the prescribed time limit, if necessary.

In conclusion, the Appellate Tribunal refrained from deciding on the validity of the Notification dated 27.03.2008 and advised the Appellant to await the High Court's final verdict. The Tribunal disposed of the appeals and miscellaneous applications, emphasizing the need for the High Court to determine the crux of the issue regarding the Notification's validity, which would impact the Appellant's claim for refund.