2015 (5) TMI 527 - AT - Central Excise

Refund claim - Jurisdiction of Tribunal - SEZ unit located in India - Held that - Wordings of clause (b) of proviso to Section 35B(1) is clear that only those cases where the goods have been exported to any country or territory which is outside of India will fall under this clause and only in those cases this Appellate Tribunal has no jurisdiction to entertain the appeal. However in the present case the goods were not exported to any country outside of India but supply to SEZ which is undisputedly located within India. In view of this fact and legal provision of Section 35B(1) proviso to clause (b) a different meaning cannot be inferred as against the plain language of the provision which mandate that only in those cases where goods are export to outside of India this Appellate Tribunal has no jurisdiction to entertain the appeal. Therefore we are of the view that in the present case where refund/rebate is related to supplies made to SEZ within India this Tribunal has jurisdiction to entertain the appeal. - matter shouldbe placed before the Larger Bench to decide the preliminary issue that in the matter of refund/rebate against the supply of goods to the SEZ located in India whether the appeal lies before this Appellate Tribunal or a Revision Application before the Joint Secretary (Revisionary Authority) to Government of India. Matter referred to larger bench.

Issues:
1. Maintainability of appeals in relation to the admissibility of rebate claim under Section 35B(1) proviso to clause (b) of the Central Excise Act, 1944.

Analysis:
The judgment deals with the issue of the maintainability of appeals concerning the admissibility of rebate claims under Section 35B(1) proviso to clause (b) of the Central Excise Act, 1944. The appellant argued that the goods supplied to a Special Economic Zone (SEZ) within India do not fall under the exclusion clause as they were not exported outside India. The appellant cited previous cases where the Tribunal entertained appeals in similar situations. However, the Revenue contended that since the supply to SEZ is treated as export, it falls under the exclusion clause, and the Tribunal lacks jurisdiction. The Revenue referred to cases where the Tribunal did not entertain appeals on the same issue and highlighted that the Revisionary Authority to the Government of India had entertained similar cases. The Tribunal noted conflicting views and decided to refer the matter to a Larger Bench to determine whether appeals related to rebate claims for goods supplied to SEZ within India should be heard by the Tribunal or the Revisionary Authority.

The Tribunal carefully analyzed the proviso to Section 35B(1), which specifies that appeals shall not lie where goods are exported outside India. The Tribunal emphasized that the plain language of the provision indicates that only exports to countries outside India fall under the exclusion clause. As the goods in this case were supplied to an SEZ within India, the Tribunal concluded that it had jurisdiction to entertain the appeal. However, recognizing the divergent views within the Tribunal and the Revisionary Authority, the Tribunal decided to refer the matter to a Larger Bench for clarification on whether such appeals should be heard by the Tribunal or the Revisionary Authority. The decision to refer the matter to a Larger Bench was made to resolve the conflicting interpretations and establish a consistent approach in cases involving rebate claims for goods supplied to SEZ within India.

In conclusion, the Tribunal directed the registry to place the matter before the Honorable President for constituting a Larger Bench to address the question of jurisdiction regarding appeals related to rebate claims for goods supplied to SEZ within India. The judgment reflects the need for clarity and consistency in determining the appropriate forum for such appeals, considering the differing opinions within the Tribunal and the Revisionary Authority.

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