2011 (5) TMI 779 - HC - Central Excise

Rebate claim - Held that - since the order of the Commissioner (Appeals) relates to rebate on duty of excise referred to in Clause (b) of first Proviso to Section 35B of the Act, the remedy of appeal before the Tribunal was not available and the remedy of the appellant was to file revision petition under Section 35EE of the Act, appeal is disposed of without prejudice to the remedy of the appellant to file revision petition in accordance with law

Summary

Issues:
1. Jurisdiction of Respondent No. 1 under Section 35B of the Central Excise Act, 1944.
2. Equating demand under Section 11A with rebate claim under Rule 18 of Central Excise Rules, 2002.
3. Determining if the issue relates to rebate or mode of payment.
4. Correctness of confirming demand under Section 11A when rebate claim was not challenged.
5. Allegations of great injustice towards the appellant.

Jurisdiction under Section 35B:
The appellant challenged the jurisdiction of Respondent No. 1 to entertain and decide the appeal under Section 35B of the Central Excise Act, 1944. The Tribunal ruled that since the order of the Commissioner (Appeals) pertained to rebate on excise duty, the appeal before the Tribunal was not maintainable. The Tribunal suggested filing a revision petition under Section 35EE of the Act. The High Court concurred, stating that the Tribunal's decision was correct based on the statutory language. It was held that the appeal was not maintainable, and the appellant's remedy was to file a revision petition.

Equating Demand and Rebate Claim:
The issue arose regarding whether a demand under Section 11A of the Central Excise Act, 1944 could be equated with a rebate claim under Rule 18 of Central Excise Rules, 2002, triggering a bar under the proviso to Section 35B. The High Court did not delve deeply into this issue as the appeal's maintainability was the primary concern. The Tribunal's decision on the lack of appeal jurisdiction was upheld, rendering further analysis on this issue unnecessary.

Rebate or Mode of Payment Dispute:
Another issue was determining if the matter at hand related to rebate or the mode of payment. The High Court did not extensively discuss this point due to the focus on the appeal's maintainability. The Tribunal's decision was supported, emphasizing that the appellant's recourse was through a revision petition under Section 35EE.

Confirmation of Demand under Section 11A:
The correctness of confirming a demand under Section 11A when the rebate claim sanctioned by the Assistant Commissioner was not challenged was questioned. The High Court did not find grounds to interfere with the Tribunal's view, which deemed the appeal not maintainable. However, the appellant was granted the right to seek an extension of time under the Proviso to Section 35EE(2) of the Act.

Allegations of Injustice:
The appellant alleged great injustice due to the respondents' actions. The High Court, while upholding the Tribunal's decision on appeal jurisdiction, disposed of the appeal without prejudice to the appellant's right to file a revision petition in accordance with the law.