2012 (10) TMI 186 - HC - Central Excise

Rebate jurisdiction of Tribunal Held that - Proviso to Section 35 categorically states that no appeal shall lie to the appellate Tribunal and the appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in Clause (b) that is an order passed by the Commissioner of Appeals under Section 35A, if such an order relates to rebate of duty of excise on goods exported to any country or territory outside India or exercisable materials used in the manufacture of goods which are exported to any country or territory outside India - exclusion of the jurisdiction of the appellate Tribunal is expressly stated in the Statute - Tribunal was in error in entertaining the said appeal - order passed by the Tribunal is illegal, contrary to law and cannot be sustained

Summary

Issues:
Challenge to Tribunal's order granting rebate benefit under Section 35B.

Analysis:
The High Court examined the appeal challenging the Tribunal's decision granting the assessee the benefit of rebate under Section 35B. The Court delved into the provisions of Section 35B, which outlines the scope of appeals to the Appellate Tribunal. It specifically mentions the types of orders that can be appealed against, including decisions by the Commissioner of Central Excise, orders by the Commissioner of Appeals under Section 35A, and orders by the Central Board of Excise and Customs or the Appellate Commissioner of Central Excise. However, certain exceptions are laid out where no appeal lies to the Appellate Tribunal, such as cases involving loss of goods in transit, rebate of duty on goods exported, or credit of duty towards excise duty on final products. The Court highlighted that the Tribunal erred in entertaining the appeal as the exclusion of jurisdiction of the Appellate Tribunal is clearly stated in the statute. Consequently, the Court found the Tribunal's order to be illegal and contrary to law.

The Court proceeded to issue the following directives: Firstly, the appeal was allowed. Secondly, the impugned order by the Tribunal was set aside, reinstating the order passed by the Commissioner of Appeal. Thirdly, the assessee was granted the liberty to prefer a Revision to the Central Government against the order passed by the Commissioner of Appeals under Section 35A. Lastly, if the appeal is filed within 30 days from the receipt of the order copy, the Central Government was mandated to entertain the Revision and make appropriate decisions in line with the law, without considering the issue of limitation. This was emphasized due to the Tribunal setting aside the order of the appellate Tribunal and granting relief to the assessee. The Court concluded by ordering compliance with the stated directives.