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TMI Blog2011 (2) TMI 1150X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner of Appeals under Section 35-A, if such an order relates to rebate of duty of excise on goods exported to any country or territory outside India or exercisable materials used in the manufacture of goods which are exported to any country or territory outside India - The impugned order passed by the Tribunal is hereby set aside restoring the order passed by the Commissioner of appeal. Appeal is allowed - C.E.A. No. 65 of 2007, - - - Dated:- 28-2-2011 - N. Kumar and Ravi Malimath, JJ. Shri M.R. Bhaskar, Advocate, for the Appellant. Shri K.S. Ravishankar, Advocate, for the Respondent. [Judgment per : N. Kumar, J.]. The revenue has preferred this appeal challenging the order passed by the Tribunal under Section 35 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted on 20-9-2007 to consider the following substantial question of law : Whether the Tribunal is right in deciding the issue pertaining to Rebate of duty when the Tribunal has no jurisdiction to deal with this matter as per Section 35B(1) of the Central Excise Act, 1944 ? 4. Heard the learned appearing for the parties. 5. Section 35B deals with the appeals to appellate Tribunal which reads as under :- 35B. Appeals to the Appellate Tribunal (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order - (a) a decision or order passed by the Commissioner of Central Excise as an adjudicating authority; (b) an order passed by the Commissioner of Appeals under Section 35A; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Appeals) on or after the date appointed under section 109 of the Finance (No. 2) Act, 1998 :] PROVIDED FURTHER that the Appellate Tribunal may, in its discretion refuse to admit an appeal in respect of an order referred to in cl.(b) or cl. (c) or cl. (d) where - (i) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or (ii) the amount of fine or penalty determined by such order, does not exceed [fifty thousand rupees]. [(1A) Every appeal against any order of the nature referred to in the f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... three months from the date on which the order sought to be appealed against is communicated to the [Commissioner of Central Excise], or, as the case may be, the other party preferring the appeal. (4) On receipt of notice that an appeal has been preferred under this section, the party against whom the appeal has been preferred may, notwithstanding that he may not have appealed against such order or any part thereof, file, within forty-five days of the receipt of the notice, a memorandum of cross-objections verified in the prescribed manner against any part of the order appealed against and such memorandum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in sub-section (3). (5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of mistake or for any other purpose; or (b) for restoration of an appeal or an application, shall be accompanied by a fee of five hundred rupees : PROVIDED that no such fee shall be payable in the case of an application filed by or on behalf of the Commissioner of Central Excise under this sub section.] A reading of the aforesaid provision makes it very clear that the proviso to Section 35 categorically states that no appeal shall lie to the appellate Tribunal and the appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in Clause (b) that is an order passed by the Commissioner of Appeals under Section 35-A, if such an order relates to rebate of duty of excise on goods export ..... X X X X Extracts X X X X X X X X Extracts X X X X
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