9911796707
TMI Blog1995 (5) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... nd it was held that the same was barred by limitation. They had claimed this amount on the ground that they had paid excess amount of Rs. 15.06 lakh towards the duty during the period from June, 1983 to September, 1984. The refund of that amount of duty which was paid in excess was claimed by them, which was rejected by the lower authorities against which the present appeal has been filed before this Tribunal. 3. E(SB) 4075/94 (M.A. 148/94) is an appeal filed by the appellant/applicant Firm against the order passed by the Collector of Central Excise (Appeals) dated 9-12-1993 whereby he rejected the appeal of the appellant/applicant Firm against the order passed by the Assistant Collector concerned rejecting their claim of refund of Rs. 1,00,899.78. In this case also the appellants/applicants had claimed refund of duty paid by them. But it was held in the appeal to the impugned order that since the appellants/applicants claimed the refund without indicating as to whether the burden of duty in respect of which refund had been claimed was passed over to the buyers, they should file a refund claim in support of an amended provision of Section 11B of Central Excises and Salt Act, 1944 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Rs. 200.00 or Rs. 1,000.00, as the case may be, where the appeal pertains to any amount of duty demanded or penalty levied by a Central Excise Officer or not. Since no duty-demand or penalty is involved in their cases, they are not required to pay any Court Fees in this regard in the light of the amended Section. 7. Replying to the above-said contentions, learned Junior Departmental Representatives, S/Shri B.B. Sarkar and S.N.Ghosh contended before us that the refunds which the applicants/appellants are asking for are the refunds of duty and therefore, appeals relate to the duty elements and therefore, they have to pay the prescribed fees. They also drew our attention to the objects and reasons of the amendment made in the Finance Act, 1993. Therefore, they stated that the applicants/appellants are required to pay Fees. 8. We have considered the submissions carefully. In order to appreciate the respective contentions we reproduce the unamended Section 35B(6) which reads as follows : (6)An appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the prescribed manner and shall, except in the case of an appeal referred to in sub-section (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a challenge to the validity of classification was repelled placing reliance on an affidavit filed on behalf of the Central Board of Revenue disclosing the true object of enacting the impugned provision in the Income-tax Act." 9. We have gone through the Statement of Objects and Reasons as mentioned in the National Budget, 1993-94 published by Bahri Brothers. At page 47 thereof, the relevant portion in regard to Section 35B of C.E.S.A. 1944 reads as follows :- Sub-clause (1)(b) seeks to amend sub-section (6) of Section 35B so as to enhance the fee for appeal to the Appellate Tribunal from rupees two hundred to rupees one thousand for cases where the amount of duty demanded and penalty levied by any Officer of Central Excise in a case is more than rupees one lakh. The fee of rupees two hundred chargeable under the existing provision remains unchanged for cases where the amount of duty and penalty does not exceed rupees one lakh. Sub-clause (2) seeks to amend sub-section (3) of Section 35D, relating to disposal of cases by a single Member of the Appellate Tribunal. The existing provision, inter alia, empowers a single Member to hear cases where the amount involved does not exce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to Section 36B(1)(b) of the said Act wherein it was mentioned that a facsimile copy of a document is permitted to be produced. But in this case, what is produced is a xerox copy. There is always a scope of tampering with the xerox copy whereas the same scope is not there with respect to the facsimile copy. Since the appellant/applicant Company in Appeal No. E(SB) 4075/94 has produced a xerox copy the registry was perfectly right in calling upon them to produce a duly authenticated copy. Therefore, this objection raised by the registry is also valid. Shri Biswas on behalf of the applicants/appellants should produce the above-said authenticated copy also within a period of one month from the date of receipt of this order. 12. These two Miscellaneous Applications are disposed of accordingly. [Assent per : P.C. Jain, Member (T)]. - I have gone through the order proposed by my learned Brother, Shri T.P. Nambiar, Judicial Member. I agree with his findings. I would, however, like to add the following :- 13. Relevant provision [Section 35B(6) of C.E.S.Act, 1944] under consideration is regarding levy of fee to be paid by an appellant at the time of presenting the appeal to the Tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posed in lieu of confiscation of goods or absolute confiscation of goods is also penal in character. Therefore, it can be said that `penalty has been levied by the officer when he imposes a fine in lieu of confiscation or absolutely confiscates goods of certain value. 17. No doubt, the word - `penalty - carries a special meaning in the C.E.Act Rules with reference to penalty on the person. A certain amount of inelegant drafting has caused the confusion leading to the Miscellaneous Applications. This could be avoided with careful drafting. But having regard to the nature and purpose of the provisions, there is no doubt that fee is required to be paid by both the applicants as asked for by the Registry. 18. As regards the facsimile copy, suffice it to say that this is procedure prescribed under C.E.G.A.T. (Procedure) Rules for prosecution of an appeal to the Tribunal. Certified copies of Order-in-Original or Order-in-Appeal required with an appeal are not pieces of evidence falling within the mischief of Section 36B(1)(b). Certified copies, as required under the said Rules, is part of a legal procedure. This plea of the latter applicants is also not accepted. - - TaxTMI - ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
