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2024 (8) TMI 853 - AT - Service TaxMaintainability of appeal in view of statutory provisions under Section 35 and especially under Section 35B of Central Excise Act as made applicable to Service Tax - Wrongful filing of appeal under service tax under Section 35F of the Central Excise Act - admissibility of refund or transfer of credit. Whether the appeal filed by the appellant is maintainable before this Tribunal or otherwise? - HELD THAT - A creation of statute like CESTAT cannot traverse beyond what has been explicitly provided within the governing statute. Thus, in view of explicit statutory provisions, discussed supra, regarding the appeal before CESTAT, the impugned order issued by Superintendent-Registry cannot fall under the purview of CESTAT. Admissibility of the refund/transfer of credit etc., on merit under Section 140 or 142 - HELD THAT - It cannot got into merit of the refund claim without first deciding the maintainability of appeal itself before this Tribunal and retrain from expressing any view on the merit of case in so far as it relates to transfer/refund of credit. Therefore, without getting into the eligibility of refund or transfer under Tran-A or otherwise in the facts of the case, on the short question of maintainability of this appeal before this Tribunal itself, the appeal is liable to be dismissed - Appeal is dismissed being non-maintainable.
Issues Involved:
1. Maintainability of the appeal before the Tribunal. 2. Admissibility of refund or transfer of Cenvat Credit under Section 140 and 142 of the CGST Act 2017. Issue-wise Detailed Analysis: 1. Maintainability of the Appeal Before the Tribunal: The primary issue was whether the appeal filed by the appellant is maintainable before the Tribunal. The appellant had filed an appeal against an Acknowledgment cum Deficiency Memo dated 18.03.2024, issued by the Superintendent-Registry, Appeals-II Commissionerate, Hyderabad. The Superintendent-Registry had pointed out deficiencies in the appeal filed against the Order-in-Original dated 12.01.2022 and indicated that the appellant should file the appeal under Section 107 of the CGST Act 2017 and TGST Act 2017. The Tribunal examined whether this memo could be considered an order passed by the Commissioner (Appeals) under Section 35A, which could be entertained by the Tribunal. It was observed that the memo was not a speaking order or any decision by the Commissioner (Appeals) and thus did not fall within the ambit of Section 35B(1)(b) of the Central Excise Act, as made applicable to Service Tax. The appellant relied on the judgment in the case of Gaurav Pharma Ltd., where it was held that orders passed by the Adjudicating Authority are not merely administrative or interim in nature and are appealable. However, the Tribunal noted that in the present case, there was no order or decision passed by the Commissioner (Appeals), and therefore, the appeal could not be entertained under Section 35B(1)(b). The Tribunal also referred to the judgment in the case of M/s Bosch Electrical Drive India Pvt Ltd., where it was held that an appeal would lie to the CESTAT against an order passed under Section 142 of the CGST Act 2017. However, the Tribunal clarified that merely because an appeal under Section 142 is maintainable before the Tribunal, it does not override the provisions of Section 35B(1)(b). The Tribunal concluded that the appeal was not maintainable as it did not fall under any of the categories specified in Section 35B(1)(b). The appellant should have approached the Commissioner (Appeals) for a speaking order or followed the advice given in the memo. 2. Admissibility of Refund or Transfer of Cenvat Credit: The Tribunal refrained from expressing any view on the merit of the refund claim under Section 140 or 142 of the CGST Act 2017, as it first needed to decide the maintainability of the appeal. The Tribunal emphasized that it cannot get into the merit of the refund claim without first deciding the maintainability of the appeal. The Tribunal also referred to various judgments, including the Supreme Court's judgment in UOI Vs Kirloskar Pneumatics Company and the High Court's judgment in IOCL Vs UOI, which highlighted that the Tribunal, being a creature of statute, cannot exercise powers beyond what is explicitly provided under the statute. Conclusion: The Tribunal dismissed the appeal as non-maintainable without getting into the eligibility of the refund or transfer of credit. The Tribunal emphasized that it cannot traverse beyond the explicit statutory provisions and thus, the impugned order issued by the Superintendent-Registry could not fall under the purview of the CESTAT. Order: The appeal was dismissed as non-maintainable.
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