2010 (7) TMI 323 - AT - Central Excise

Maintainability of appeal SCN issued several allegations against different people - availement of rebate of Central Excise duty by exporter - fraudulent availment of CENVAT credit - Each person has to defend their own case and there is no provision in the Act that in such situation, appeals shall lie before the same authority under a common show-cause notice Held that - appeals are not maintainable Appeal is rejected

Summary

Issues:
Appeal jurisdiction of the Appellate Tribunal CESTAT, Mumbai regarding rebate of duty of excise on goods exported.

Analysis:
The appellants filed appeals along with stay applications against the order of Commissioner (Appeals) which were dismissed for non-compliance of the stay order. The learned DR raised a preliminary objection stating that the appeals are not maintainable before the Tribunal as per Section 35B of the Central Excise Act, 1944, due to the nature of the claim involving rebate of duty of excise on goods exported. However, the appellants argued that since a common show-cause notice was issued to all parties and adjudicated by the Addl. Commissioner, appeals were filed before the Commissioner (Appeals) and subsequently before the Tribunal. They contended that if the appeals of co-noticees were held maintainable, their appeals should also be considered maintainable.

The Tribunal examined Section 35B which outlines the jurisdiction of the Tribunal. It was noted that the issue regarding the rebate of Central Excise duty by the exporter is not maintainable before the Tribunal as per the provisions of the Act. The Tribunal emphasized that each person must defend their own case, and there is no provision for appeals to lie before the same authority under a common show-cause notice. The Tribunal rejected the arguments that the common show-cause notice justifies the maintainability of the appeals, stating that the appellant must address their own legal issues. The Tribunal concluded that the appeals were not maintainable before the Tribunal and subsequently rejected them, along with disposing of the stay applications in the same manner.

In the judgment pronounced on 19-7-2010, the Tribunal clarified that the issue of fraudulent availment of rebate claim by the exporter falls under the jurisdiction of the Joint Secretary, further solidifying the decision that the appeals were not maintainable before the Tribunal.