9911796707
TMI Blog1996 (10) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... By that order the Assistant Collector had allowed their claim for refund of Central Excise duty of Rs. 79,595.46 paid on 36 Metric Tonnes of Oxalic Acid manufactured and cleared by them for export to Italy. The Revision Application was disposed of by the Government vide their Order No. 30/93, dated 9-6-1993 holding that as the duty amount in question had been paid by them when the subject goods were sought to be diverted for home consumption, the nature of their claim is refund of duty and not of rebate on export and hence Government does not have jurisdiction to decide the case by way of revision application. The applicants were accordingly directed to move the appropriate forum (CEGAT) . It was then that the present appeal had been filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions and perused the record. The question of jurisdiction of the Tribunal to deal with the subject matter has got to be considered and decided in the first instance. The relevant statutory provision is the first proviso to sub-section (1) of Section 35B which lays down that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of an order passed by the Collector (Appeals) under Section 35A ibid if such order, inter alia, relates to - ......... a rebate of duty [of] excise on goods exported to any country or territory outside of India......... In the present case the goods in question were cleared from the factory without payment of excise duty in bond fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter on had been returned to the factory, it would have been a case of refund under Rule 173M in which case any appeal would have been within the Tribunal s jurisdiction. But where the goods were exported and refund has been claimed on that score only, it is really a case of rebate of excise duty in respect of exported goods. Such a case squarely falls outside the jurisdiction of the Tribunal. The decisive factor for determining jurisdiction is not the nomenclature refund for the claim made but what, in substance, it is. As Shakespeare said what is in a name? This is a claim consequent to export of the goods and such a case is covered by the first proviso to sub-section (1) of Section [35B]. In the circumstances, the appeal is out of juris ..... X X X X Extracts X X X X X X X X Extracts X X X X
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