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TMI Blog2014 (3) TMI 918X X X X Extracts X X X X X X X X Extracts X X X X ..... to Section 35B(1) prohibits this Tribunal to entertain appeals relating to rebate claim - miscellaneous application is not maintainable as the same cannot be considered as an appeal as provided for in the law relying on the decision of Hon'ble Apex Court in the case of State of Punjab and Ors. Vs. Gurdev Singh, Ashok Kumar [1991 (8) TMI 328 - SUPREME COURT] - Matter sent back for necessary action - Decided against Appellant. - Appeal No. E/719/2009 - Final Order No. A/115/2014-WZB/C-II(EB) & Misc. Order No. M/372/2014/WZB-C-II, dated 31-1-2014 - Dated:- 31-1-2014 - Mr. P R Chandrasekharan, Mr. Anil Choudhary, Mr. P K Jain, JJ. For the Appellant : Mr M H Patil, Adv. For the Respondent : Mr. Navneet, Addl. Commissioner (AR) JUDGEMENT Per: P R Chandrasekharan: In this Miscellaneous application filed by M/s Ajinkya Enterprises, a prayer has been made, inter alia, for giving directions to Deputy Commissioner of Central Excises, Pune VI Division of Pune III Commissionerate for implementing the order of this Tribunal vide order No. A/491-497/11/EB/C-I dated 26-5-2011 wherein the appeals filed by the said appellant were allowed with consequential relief. 2. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edit taken by the appellants on HR/CR coils which are cleared by them on payment of duty, after the process of de-coiling, cutting and slitting into specific sizes and thereafter carrying out pickling and oiling is required to be reversed or not. After considering the submissions made, the Tribunal came to the following conclusion in para 12 thereof as reproduced vertatim below:- 12. Therefore, in view of the above discussion, we find that the duty paid by the appellants has been accepted by the department which is admittedly more than the CENVAT credit availed by the appellants. Therefore, following the various judicial pronouncements as discussed hereinabove, we hold that the appellants are not required to reverse the credit. Accordingly, the appeals are allowed with consequential relief. 2.3 This decision of the Tribunal was challenged by the Revenue before the hon'ble High Court of Bombay in Central Excise Appeal No. 29 of 2012 which was disposed of by the high court vide order dated 26 th June 2012. The hon'ble High Court framed the question for consideration as follows:- Whether the CESTAT was justified in holding that the Cenvat Credit of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent for issue of notification under section 5B of CEA ordering non-reversal of credit in such cases. Therefore, the question of automatic refund of credit shall not arise even if the benefit of Circular dated 14-1-2010 is made available to the respondent. 8. Regarding reversal of Cenvat credit already taken by the respondent. CESTAT observed that the respondent already paid more than the credit availed and hence further reversal of credit is not required in the present case. CESTAT also observed that once duty on the final products has been accepted by the Department, Cenvat credit cannot be denied even if the activity does not amount to manufacture. The effect of the order of CESTAT is that the respondent is not required to reverse the credit in view of the material facts and circumstances. 9. CESTAT's order nowhere discusses rebate of duty paid under Rule 18/19 of CER. The limited issue before CESTAT was denial of Cenvat credit on the ground that the activities undertaken by the respondent do not amount to manufacture. There was no justifiable reason for the refund sanctioning authority to sanction refund/rebate suo-moto under rule 5B of CCR or rule 18/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h dealing only with the forest income, held that the Income Tax Officer had no jurisdiction to initiate proceedings under Section 34 in respect of such income and by inadvertence or by mistake set aside the entire order of assessment both in respect of forest income as well as the interest income. The department did not take any steps to rectify the mistake under section 35 or to have the question of illegality referred to the High Court. The Income Tax Officer initiated fresh proceedings under Section 34 in respect of interest income and made a revised assessment order which included this income. The Appellate Tribunal confirmed the assessment but the High Court, on a reference made to it, took the view that fresh proceedings could not be taken for the reason that the Tribunal's earlier order had become final. The matter reached the Apex Court and the hon'ble Court held as follows. The Tribunal had committed a mistake in setting aside the reassessment order in respect of interest income also, but the income tax officer did not resort to the obvious remedy of having the mistake rectified as provided for under s.35 and allowed the Tribunal's order dated April 15, 1949 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edly, the same can be admitted by the Tribunal under section 35B(5), if it is satisfied that there was sufficient cause for not presenting it within that period. No such appeal has been filed by the appellant in this case along with any condonation of delay application. Therefore, in the absence of a proper appeal challenging the decision of the Commissioner (Appeals), the present miscellaneous application is not maintainable before this Tribunal. A miscellaneous application is a not substitute for an appeal as provided for in the law. 5.2 A similar question came up for consideration before the hon'ble Apex Court in State of Punjab and Ors. Vs. Gurudev Singh, Ashok Kumar [1991 AIR 2219, 1991 SCR (3) 663] and the hon'ble Apex Court held as follows:- An order even if not made in good faith, is still an act capable of legal consequences. It bears no brand of invalidity upon its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders. [See: Administrative Law 6 th Ed. P.352] Prof. Wade sums up t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ckling oiling). This position was accepted by the department. That pursuant to circular no. 811/8/2005 dated 02.03.2005, CBEC withdrew its earlier circular dated 07.09.2001. This new circular was silent as to the process of pickling and oiling, whether amounts to manufacture. It is only on 24.06.2010 that vide circular CBEC clarified for the first time that mere undertaking the process of pickling oiling, being preparatory steps, did not amount to manufacture. 9.3 It was further noticed that the petitioner have paid duty (output tax) more than credit taken and cleared such goods under the cover of Central Excise invoice and hence their case is squarely covered under Rule 3(5) of CENVAT Credit Rule, 2004. 9.4 After the dispute as to amounts to manufacture' arose, and was so clarified by department in 2008, the petitioner applied and was issued Dealers registration in December, 2008. Thus, was entitled to issue cenvatable invoices in favour of customers. 9.5 In para 3 F (i) of its order, Tribunal also noticed note 6 to Section XVI XVII under which chapter 84 to 89 are covered, would support activity of the petitioner as amounting to manufacture. 9.6 The inputs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s case, in order to do substantial justice to the petitioner, this Miscellaneous application is treated as appeal. Further delay in preferring this Miscellaneous application is condoned. 14. The Ld. Additional Commissioner (A.R.) reiterates the findings of the Commissioner of Central Excise (Appeals). 15. Having considered the rival submissions, the order dated 30.04.2012 the Commissioner of Central Excise (Appeals) is set-aside and the order dated 22.11.2011 of the Dy. Commissioner sanctioning refund/rebate pursuant to order of the Tribunal granting consequential relief, is restored. 16. Thus, the Miscellaneous application/Appeal is allowed. 17. In view of the difference of opinion between the two members, the following point of difference is placed before the Hon'ble President for reference to the 3 rd Member: Whether the miscellaneous application is not maintainable as the same cannot be considered as an appeal as provided for in the law as held by the Ld. Member (Technical) relying on the decision of Hon'ble Apex Court in the case of State of Punjab Ors. Vs. Gurudev Singh, Ashok Kumar [ 1991 AIR 2219, 1991 SCR (3) 663]. OR Wheth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t permit the same. Due to financial difficulties, he himself has appeared for hearing. 2. Learned A.R. on the other hand argued that though it is a fact that the applicant has filed five appeals against the rejection of rebate claims, but this Tribunal has no jurisdiction to entertain appeals relating to the rebate claim. It is because of this reason that the impugned order of Tribunal has no finding, discussion or analysis about the rebate claims and no direction has been passed by the Tribunal. In this regard, the learned A.R. further argued that if applicant had any grievance against the said Tribunal's order, applicant could have gone to the Bombay High Court and it was not for the Revenue to go to the Bombay High Court for this reason. The Ld. AR further stated that since this Tribunal has no jurisdiction to deal with rebate claims, even if the Tribunal has decided about the rebate claim, the order is to be treated as null and void and will be non-est in the eyes of law. Learned A.R. further stated the miscellaneous application therefore should be rejected. The Learned A.R.'s other contention was that applicant was fully aware of the appeal filed by Revenue before C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring the appeal proceedings appellants have also argued about the rejection of rebate claims. However, from the order it appears that no findings, discussion or analysis has taken place in relation to the rebate claims. The order has finally concluded that the appellants are not required to reverse the credit. Accordingly, the appeals were allowed with consequential relief. 5. From the above, it cannot be said that decision of the Commissioner of Central Excise, Pune was malafide. I agree with the Member (Technical) that miscellaneous application is not a substitute for an appeal as provided in law and in view of Hon'ble Supreme Court decision in the case of State of Punjab and Ors. Vs. Gurdev Singh, Ashok Kumar (supra) applicant cannot challenge the decision of Commissioner (A) by filing the miscellaneous application. Member (Judicial) has taken the view that the miscellaneous application has to be treated as an appeal and the delay in filing the miscellaneous application has to be condoned in the facts and circumstances of the case and the application allowed with consequential relief. This Tribunal is creation of statute and is not a High Court/ Supreme Court whose powers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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