2020 (12) TMI 695 - AT - Central Excise

Maintainability of appeal - not depositing the mandatory pre-deposit under Section 35F of CEA - HELD THAT - The appellant had already filed Revision application challenging the decision of the Commissioner (Appeals) whereby the Commissioner (Appeals) had accepted the Department s appeal. Also, the appellant has filed the revision application against the Order-in-Appeal passed by the Commissioner of Central Excise (Appeals), Bangalore. Also, the Revenue has now attached the copy of the notice issued by the Revisionary Authority which shows that the whole issue is pending with the Revisionary Authority, Government of India. Since the issue is pending before the Revisionary Authority, it was incumbent on the original authority not to adjudicate the protective notices issued by them and should have waited till the decision of the Revisionary Authority. Matter remanded to the original authority with a direction to keep the whole matter in abeyance till the decision of the Revisionary Authority - appeal allowed by way of remand.

Issues:
- Appeal against rejection of rebate claims for not depositing mandatory pre-deposit under Section 35F
- Appeal against the sanctioning of rebate by the Adjudicating Authority
- Appeal against the demand for erroneously refunded amounts under Rule 14 of CCR, 2004 read with Section 11A (1) of CEA, 1944
- Appeal against rejection of appeal for not depositing mandatory pre-deposit under Section 35F without considering the pending revision application before the Revisionary Authority

Issue 1: Appeal against rejection of rebate claims for not depositing mandatory pre-deposit under Section 35F

The appellant filed four rebate claims, which were rejected by the Commissioner of Central Tax (Appeals) for not depositing the mandatory pre-deposit under Section 35F. The Adjudicating Authority found that excess duty was paid, re-determined values, and allowed the rebate. The Department appealed, and the Commissioner (Appeals) allowed the appeals in favor of the Department. The appellant filed Revision applications with the Revisionary Authority. The Assistant Commissioner issued protective show-cause notices demanding the rebate sanctioned, treating it as erroneously refunded amounts. The Commissioner rejected the appeal for not depositing the mandatory pre-deposit without considering the pending revision application. The Tribunal remanded the matter to the original authority to keep it in abeyance until the Revisionary Authority's decision.

Issue 2: Appeal against the sanctioning of rebate by the Adjudicating Authority

The Adjudicating Authority allowed the rebate claimed by the appellant, but the Department appealed, alleging errors in sanctioning the rebate. The Commissioner (Appeals) allowed the Department's appeals, leading to the appellant filing Revision applications with the Revisionary Authority. The Assistant Commissioner issued protective show-cause notices demanding the erroneously refunded amounts. The Commissioner rejected the appeal for not depositing the mandatory pre-deposit without considering the pending revision application. The Tribunal remanded the matter to await the Revisionary Authority's decision.

Issue 3: Appeal against the demand for erroneously refunded amounts under Rule 14 of CCR, 2004 read with Section 11A (1) of CEA, 1944

The Assistant Commissioner issued protective show-cause notices demanding the erroneously refunded amounts, treating them as recoverable under Rule 14 of CCR, 2004 read with Section 11A (1) of CEA, 1944. The Commissioner rejected the appeal for not depositing the mandatory pre-deposit without considering the pending revision application. The Tribunal remanded the matter to await the Revisionary Authority's decision.

Issue 4: Appeal against rejection of appeal for not depositing mandatory pre-deposit under Section 35F without considering the pending revision application before the Revisionary Authority

The appellant challenged the rejection of the appeal for not depositing the mandatory pre-deposit under Section 35F, arguing that the matter was pending before the Revisionary Authority. The Tribunal found that the issue was pending with the Revisionary Authority and set aside the impugned orders, remanding the matter to the original authority to keep it in abeyance until the Revisionary Authority's decision. The Tribunal disposed of all four appeals by way of remand.

This detailed analysis covers the various issues involved in the legal judgment, outlining the sequence of events, arguments presented by both parties, and the Tribunal's decision to remand the matter pending the Revisionary Authority's decision.

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