2014 (4) TMI 922 - AT - Service Tax

Maintainability of appeal - Denial of rebate claim - Section 35B - Held that - Sec.35EE is in respect of revision by Central Government under the Central Excise Act. In Sec.83 of the Finance Act the provisions of Sec.35EE of the Central Excise Act were included amending thereby revision lies to the Central Government whereas as per Sec.86 it covers appeal to the Appellate Tribunal - There was specific provision which provides that the Tribunal shall exercise the same powers and follow the same procedure as it exercises and follows in hearing the appeal and making orders under the Central Excise Act. We find that as per Sec.35B of the Central Excise Act the Tribunal has no jurisdiction to hear the appeal filed against the order passed by the Commissioner( Appeals) in respect of the rebate-claim - There was specific provision which provides that the Tribunal shall exercise the same powers and follow the same procedure as it exercises and follows in hearing the appeal and making orders under the Central Excise Act. We find that as per Sec.35B of the Central Excise Act the Tribunal has no jurisdiction to hear the appeal filed against the order passed by the Commissioner( Appeals) in respect of the rebate-claim. We find force in the contention of the Revenue that the appeal is not maintainable - Decided against assessee.

Summary

Issues:
1. Maintainability of the appeal under Sec.86 of the Finance Act, 1994.
2. Applicability of Sec.83 of the Finance Act to the appeal filed prior to the amendment.

Analysis:
Issue 1: The Revenue contended that the appeal was not maintainable due to Sec.86 of the Finance Act, which states that the CESTAT shall exercise powers and procedures similar to those under the Central Excise Act, 1944. They argued that as per Sec.35B of the Central Excise Act, the Tribunal lacked jurisdiction to decide on the appeal against the order passed by the Commissioner (Appeals) regarding the rebate claim. The Revenue's position was that the appeal should be dismissed based on this ground.

Issue 2: The appellants countered by invoking Sec.83 of the Finance Act, which made provisions of specified sections of the Central Excise Act applicable to service tax. They pointed out that Sec.35EE of the Central Excise Act, which pertains to revision by the Central Government, was included in Sec.83 with effect from a specific date. Since the appeal was filed before this amendment, they argued that it should be considered maintainable.

The judgment, delivered by S S Kang, highlighted the distinction between Sec.35EE and Sec.86, emphasizing that while Sec.35EE dealt with revision by the Central Government, Sec.86 covered appeals to the Appellate Tribunal. The Tribunal noted that it was bound by the provisions of Sec.35B of the Central Excise Act, which restricted its jurisdiction in hearing appeals related to orders by the Commissioner (Appeals) concerning rebate claims. Consequently, the Tribunal concurred with the Revenue's argument that the appeal was indeed not maintainable.

Given the circumstances, the Tribunal directed the Registry to transfer the appeal papers to the Joint Secretary to the Government of India, Revisional authority, New Delhi, as the appeal had been pending since 2008. This decision was reached after a thorough examination of the relevant legal provisions and their applicability to the case at hand.