2013 (1) TMI 611 - AT - Central Excise

Condoning the delay Classification Rebate claim - Rule 18 of the Central Excise Rules, 2002 - Chapter sub heading 73269099 - Notification No.10/03-CE, dated 01.03.03 - Section 5A (1A) of Central Excise Act - Ice Bucket and waste Bucket - Delay in filing the appeal The appeal filed against Order of Commissioner (A) before Govt. of India as revision application on issue of rebate claim After the decision of Jt Secretary (RA) appeal filed before Tribunal for consideration of the classification issue Held that - Where the main issue is export rebate covered by first proviso to Section 35B(1) and if for deciding the issue relating to export rebate, some other issues have also to be decided, the Tribunal would not have jurisdiction and that order of Commissioner (Appeals) can be challenged only before the Jt. Secretary (RA) by filing a revision application. Where the Commissioner (Appeals) in the same order decides two issues one issue relating to export rebate and other issue relating to classification/valuation or Cenvat credit and the two issues are totally independent issues, the order of the Commissioner (Appeals) can be treated as two orders-one in respect of export rebate and the other in respect of classification or valuation or Cenvat credit and only in such a case different portions of the order can be challenged before different authorities. The eligibility of the rebate claim depends on the classification of goods. The same impugned order passed by the Commissioner(A) cannot be subject matter of two different appeals before two different appellant forums. Once the appeal filed there against before Govt. of India as revision application stands rejected by the Joint Secretary on merits, the impugned order cannot be challenged for the second time before Tribunal for consideration of the classification issue. Since the Commissioner (Appeals) s order had been challenged before the right forum by filing revision application before Jt. Secretary (RA), the facts and circumstances of the case, there is no justification for condoning the delay of 948 days in filing of the appeal, Moreover, when the Jt. Secretary (RA) has rejected the Department s revision application against the Commissioner (Appeals) order and as such the order of the Commissioner (Appeals) stands merged with the order of Jt. Secretary (RA), there is no question of even filing appeal against the order of the Commissioner (Appeals) before the Tribunal. In favour of assessee

Summary

Issues Involved:
1. Condonation of delay in filing the appeal.
2. Classification of goods (Ice Bucket and Waste Bucket).
3. Eligibility for rebate claims.
4. Jurisdiction of appellate authorities.

Detailed Analysis:

1. Condonation of Delay in Filing the Appeal:
The Assistant Commissioner, Rohtak, filed a petition to condone a delay of 940 days in appealing against the Commissioner (Appeals)' order. The delay was attributed to the Revenue pursuing a revision application before the Joint Secretary (Revision Application), Ministry of Finance, which was ultimately rejected on merits. The Tribunal observed that the same impugned order could not be subjected to two different appeals before different appellate forums, and since the revision application was already rejected on merits, the appeal could not be entertained again by the Tribunal. Consequently, the delay was not condoned, and the appeal was rejected.

2. Classification of Goods (Ice Bucket and Waste Bucket):
The Commissioner (Appeals) had classified the Ice Bucket and Waste Bucket under chapter subheading 73269099, requiring them to be cleared on payment of appropriate duty and making them eligible for Cenvat Credit. This classification was contested by the Revenue, who argued that the goods should be classified under heading 7323, where they would be exempt from duty. The Joint Secretary (Revision Application) upheld the classification under 73269099, noting that the department's claim was unsupported by documentary evidence and that the goods were correctly classified under 73269099 in the invoices.

3. Eligibility for Rebate Claims:
The eligibility for rebate claims was dependent on the classification of the goods. The Commissioner (Appeals) allowed the rebate claims of Rs. 53,43,368 based on the classification under 73269099. The Joint Secretary (Revision Application) concurred, stating that since the goods were classified under 73269099, the rebate claims were rightly held admissible. The Tribunal noted that the eligibility for rebate claims was intrinsically linked to the classification of the goods, and since the classification was upheld, the rebate claims could not be denied.

4. Jurisdiction of Appellate Authorities:
The Tribunal examined the jurisdictional aspects, noting that the Commissioner (Appeals) had the authority to decide both the classification and rebate issues. However, under Section 35EE of the Central Excise Act, appeals related to rebate claims should be filed before the Central Government, whereas appeals on classification should be filed before the Tribunal. The Joint Secretary (Revision Application) did not dismiss the application on jurisdictional grounds but rather on merits, indicating that the classification issue was not set aside by the Tribunal. The Tribunal emphasized that the same order could not be appealed before two different forums, and since the revision application was already rejected on merits, the appeal before the Tribunal was not maintainable.

Final Order:
The Tribunal, by majority order, concluded that the delay in filing the appeal by the Revenue was not to be condoned. Consequently, the application for condonation of delay was rejected, and the appeal was dismissed as barred by limitation.