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TMI Blog2013 (1) TMI 611X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Commissioner(Appeals) was appealed against by the Revenue by filing a revision application before the Govt. of India, Ministry of Finance. The said revision application so filed by the Revenue stands disposed of by the Joint Secretary (Revision Application) vide his order No.215/11-CX, dtd. 07.03.11. While disposing of the said revision application, the authority observed as under:- 8. Government notes that department's claim that there was no classification dispute and goods were classified under chapter heading 7323 by the Respondent, is not supported by any documentary evidence. The Respondent has claimed that they had classified the impugned exported goods in the chapter heading 7326 only. In the brief facts of the case stated in impugned Order-in-Original, it is mentioned that on checking the invoices submitted by party it was observed that party had classified export goods viz the Bucket and waste bucket under Tariff heading 73269099 attracting duty @ 16%. So the department's contention has no force. Government further notes that issues of classification of exported goods and sanction of rebate claims is decided together by single order by the lowe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of limitation. However, in the instant case, we find that the stand taken in revision application does not stand rejected by Govt. of India on the point of jurisdiction but the same stand considered on merits and is accordingly rejected. As such, the reasons adopted by the Joint Secretary for rejecting the application on merits and by observing that the classification issue does not stands set aside by CESTAT cannot be adopted as a reason for filing another appeal before Tribunal in respect of the same order of the Commissioner (Appeals). 5. In view of our foregoing observation, we find no reasons to entertain the appeal by condoning the delay. In as much as the delay does not stand condoned, the appeal itself is liable to be rejected. We order accordingly. (Pronounced in the Open Court) 6. I have gone through the order recorded by Ld. Member (Judicial). 7. This is a case involving determination of classification of certain excisable goods. The eligibility of rebate claims filed by the Respondent depended on the classification of the goods. The adjudicating authority as also the first appellate authority which passed the impugned orders had jurisdiction to decided both the issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te one is an Appeal and the other is a Revision Application. However this technical nicety is not the main reason for disagreeing with the views of Ld. Member (Judicial). 11. In my view the order recorded by the J.S. that he is rejecting the appeal on merit is non- est because he could not have passed any order in the matter of classification and such order passed cannot have validity in the eyes of law. So the last sentence of the order of the J.S. cannot be any consequence in deciding the matter. 12. When the issue is inherently of a nature where the law provides appeals two different authorities in two aspects of the disputed issue, the appeal itself cannot fail for the reason that for the reason that the matter involves two such aspects or for the reason that the statute provides so or. The only question that can arise is what should be the sequence in which the two aspects have to be decided. In this case, first the classification is to be decided and then the eligibility for rebate. Revenue was not conscious of this order and filed application to J.S. apparently because they got focused on the outcome, which is rebate, and not the order in which issues are to be decided. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10/03-CE, and hence, neither any duty was payable in respect of these items nor any Cenvat credit was admissible, and therefore, rebate of duty paid on the goods exported was not admissible. Here it may be mentioned that in the show cause notice dated 23.3.2007 while taking note of the fact that the respondents had classified the goods, in question, under heading 7326, it was stated that the correct classification of the goods is under heading 7323 and as such the respondents were show caused as to why their rebate claim should not be rejected. On appeal being filed against the order of the Asst. Commissioner, the Commissioner (Appeals) vide order-in-appeal dated 15.10.2008 holding that the goods are classifiable under heading 7326, and hence, duty has been correctly paid, set aside the order of the Asst. Commissioner and allowed the rebate claim of Rs.53,43,368/-. 16. Against the above order of the Commissioner (Appeals), the department filed a revision application before Jt. Secretary (R.A.) under the provision of Section 35EE of Central Excise Act. The Revision application was filed on the following grounds:- "The Commissioner (Appeals) erred while consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d opinion that rebate claim is not deniable to the respondent as the impugned order-in-appeal remains operational in respect of classification of the impugned exported goods unless until the same is set aside by the Tribunal with respect to the classification of the goods. Jt. Secretary (RA) in his order also observed that in terms of Section 35EE of the Central Excise Act, only the issue relating to rebate claim filed under Rule 18 of Central Excise Rules, 2002 comes within the jurisdiction of Jt. Secretary (RA), whereas the part of the order of the Commissioner (Appeals) on the issue of classification was to be challenged before CESTAT. 18. In view of the above mentioned order of the Jt. Secretary (RA), Order-in-Appeal dated 15.10.2008 passed by the Commissioner (Appeals) was examined by the Committee of Commissioners which vide order dated 18.5.2011 issued under Section 35B(2) of the Central Excise Act directed the Dy./Asst Commissioner, Div. Rohtak to file appeal before the Tribunal against the Order-in-Appeal dated 15.10.2008. The appeal was to be filed for the following relief: (a) for setting aside the order-in-appeal dated 15.10.2008; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this matter. 24. Heard both sides in respect of above points of difference. 25. Shri Nagesh Pathak, learned SDR, reiterating the points mentioned in the grounds of appeal in Revenue's appeal and in the COD application pleaded that the main issue in this case is the issue of classification and issue of rebate is dependent upon the same; that the Commissioner (Appeals) has decided the issue of classification and on that basis the issue of rebate; that in view of this only one appeal should have been filed before the Tribunal as the main issue is the issue of classification and, therefore, the Tribunal was competent to hear the appeal; that since by mistake revision application was filed before the Jt. Secretary (RA) under Section 35EE, and Jt. Secretary (RA) in respect of that revision application while upholding the Order of the Commissioner (Appeals) allowing the rebate has not decided the question of classification, the department can still file appeal against the order of the Commissioner (Appeals) before the Tribunal which is the correct forum; that since the delay is on account of filing of appeal before a wrong forum, the same is condonable, as has been held by the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was never the issue of dispute, which had been decided by the Commissioner (Appeals); that the Jt. Secretary (RA) taking note of the fact that the respondent had classified the goods under heading 7326 in the assessment documents and not under 7323 and this classification had been upheld by the Commissioner (Appeals), has allowed the rebate; that in this case the main issue is the issue of export rebate, which is dependent upon the issue of classification; that since the main issue is the issue of rebate, this matter in terms of 1st proviso to Section 35B(1) of Central Excise Act, 1944 is excluded form the purview of the Tribunal, as the impugned order had been passed by the Commissioner (Appeals) and in terms of the provisions of Section 35EE, it is the Jt. Secretary (RA) which has the jurisdiction to decide this appeal; that Jt. Secretary (RA) while deciding the main question of rebate was competent to decide any other related point of dispute including the dispute of classification; that this is not the case where the impugned order of the Commissioner (Appeals) had been challenged by the department before a wrong forum; that when the department's revision application against o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the order of the Jt. Secretary cannot be treated as conditional order subject to the question of classification being decided one way or the other by the Tribunal. Therefore, last sentence of Jt. Secretary (R.A.)'s order rules out appeal against the same order of Commissioner Central Excise (Appeals) before the Tribunal. Since what exists is the order of the Jt. Secretary (R.A.), it has to be challenged before the higher forum i.e. High Court. 30. As regards the second point of difference, the main dispute in this case is over the admissibility of export rebate under Rule 18 in respect of export of Ice buckets and Waste baskets. The issue of export rebate depends upon the issue of classification. In terms of first proviso to Section 35B (1), the Tribunal has no jurisdiction over the appeals against the orders passed by Commissioner (Appeals) in the matters relating to rebate of duty of excise on the goods exported to any country or territory outside India or of rebate on excisable material used in the manufacture of goods which are exported to any country or territory outside India, Under Section 35 EE where the order is of nature referred to first proviso to Section 35B (1), a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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