2014 (3) TMI 918 - AT - Central Excise

Maintainability of miscellaneous application as Appeal - Condonation of delay - Refund / Rebate of duty paid on goods supplied to SEZ - Earlier order passed by Court in 2013 (6) TMI 610 - CESTAT MUMBAI - Difference of opinion - Majority order - The order of the lower appellate authority dated 02/05/2012 has not been challenged by the appellant and has thus become final. However, vide Miscellaneous application dated 22/08/2013, the appellant has sought for implementation of this Tribunal s order dated 26/05/2011 2013 (6) TMI 610 - CESTAT MUMBAI . Held that - Miscellaneous application is not a substitute for an appeal as provided in law - There is no provision or procedure under the Central Excise Act to consider a miscellaneous application as an appeal and condone the delay suo motu even without knowing the reasons for delay. In the earlier order of the Tribunal, there are no findings in relation to rebate even though in the facts position, certain arguments of the appellant are mentioned. Moreover, clause (b) of first proviso to Section 35B(1) prohibits this Tribunal to entertain appeals relating to rebate claim - miscellaneous application is not maintainable as the same cannot be considered as an appeal as provided for in the law relying on the decision of Hon ble Apex Court in the case of State of Punjab and Ors. Vs. Gurdev Singh, Ashok Kumar 1991 (8) TMI 328 - SUPREME COURT - Matter sent back for necessary action - Decided against Appellant.

Issues Involved:

1. Implementation of the Tribunal's order dated 26-5-2011.
2. Reversibility of CENVAT credit.
3. Jurisdiction of the Tribunal in rebate matters.
4. Validity of the Commissioner (Appeals)' order dated 02/05/2012.
5. Treatment of the Miscellaneous application as an appeal.

Detailed Analysis:

1. Implementation of the Tribunal's order dated 26-5-2011:

The appellant, M/s. Ajinkya Enterprises, filed a Miscellaneous application seeking directions for implementing the Tribunal's order dated 26-5-2011, which allowed their appeals with consequential relief. The Tribunal had allowed the appeals, stating that the duty paid by the appellants was more than the CENVAT credit availed, thus reversing the credit was not required. The Revenue challenged this decision before the High Court, which upheld the Tribunal's order. Despite this, the jurisdictional Dy. Commissioner sanctioned a rebate/refund but appropriated it against pending dues. The lower appellate authority later reversed this decision, but the appellant did not challenge this reversal, making it final.

2. Reversibility of CENVAT credit:

The core issue was whether the CENVAT credit taken by the appellants on HR/CR coils, which were cleared after processes like de-coiling, cutting, slitting, pickling, and oiling, needed to be reversed. The Tribunal concluded that since the duty paid was more than the credit availed, the credit need not be reversed. This decision was upheld by the High Court, reinforcing that the Tribunal's conclusion was justified.

3. Jurisdiction of the Tribunal in rebate matters:

The Revenue argued that "consequential relief" should not be interpreted to include rebate/refund claims, as these matters fall under the jurisdiction of the Revision Application Unit, GOI, Dept. of Revenue, New Delhi, as per Section 35EE of the Central Excise Act, 1944. The lower appellate authority supported this view, stating that the Tribunal's order did not cover rebate of duty under Rule 18/19 of the Central Excise Rules (CER).

4. Validity of the Commissioner (Appeals)' order dated 02/05/2012:

The Commissioner (Appeals) reversed the Dy. Commissioner's order that sanctioned the rebate/refund, stating that the Tribunal's order did not justify automatic refund of credit. This order was not challenged by the appellant, making it final. The Tribunal noted that without a proper appeal against the Commissioner's order, the Miscellaneous application could not substitute for an appeal.

5. Treatment of the Miscellaneous application as an appeal:

There was a difference of opinion between the members of the Tribunal. One member argued that the Miscellaneous application could not be treated as an appeal, citing the Supreme Court's decision in State of Punjab and Ors. Vs. Gurudev Singh, Ashok Kumar, which emphasized that an order, even if invalid, remains effective unless challenged within the prescribed period. Another member disagreed, suggesting that the application should be treated as an appeal and the delay condoned. The third member supported the view that the Miscellaneous application was not maintainable as an appeal, noting that the Tribunal lacked jurisdiction to entertain appeals relating to rebate claims.

Majority Decision:

The majority decision held that the Miscellaneous application was not maintainable as an appeal and dismissed it accordingly. The Tribunal emphasized that it could not substitute a Miscellaneous application for an appeal and that the proper legal procedures must be followed to challenge an order.

← Previous Next →