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TMI Blog2014 (5) TMI 566X X X X Extracts X X X X X X X X Extracts X X X X ..... both the orders would have an effect of merging and even if there is no separate challenge made by the Revenue, that may not deprive the Department from raising such an issue at this stage with this effect - On examination of the material clearly it appears essentially a question of refund of rebate and not of the duty as sought to be argued - issue since pertains to rebate, the Tribunal had no jurisdiction - Decided in favour of Revenue. - Tax Appeal No. 1204 of 2010 - - - Dated:- 5-12-2012 - Akil Kureshi and Sonia Gokani, JJ. Shri Kalpesh N. Shastri, Advocate, for the Appellant. Shri Anand B. Gogia, Ms. Kajal L. Kalwani and Ms. Muskan A. Gogia, Advocates, for the Respondent. ORDER This Appeal is preferred by the Reve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , therefore, urged the Court to intervene in setting aside the impugned order. 4. Learned counsel for the opponent has urged that this Court does not have jurisdiction for the reason that the question concerns payment of rate of duty in respect of the export goods in terms of the Notification dated 1st March 2003. She also relied upon a decision of this Court rendered in case of Commissioner of Central Excise v. JBF Industries Limited [2011 (264) E.L.T. 162 (Guj.)], where considering the provisions of Section 35G read with Section 35L of the Act, this Court has held that when there is a question of applicability of a notification or a circular, which has a bearing on the determination of the rate of duty which has a direct and proximate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. In the order impugned, the aspect of jurisdiction is not being touched and one of the submissions before us was also that no challenge was made to the order of recall passed on dated 4th April 2006, and therefore also, at such belated stage, such challenge to the jurisdiction should not have been entertained. 8. We are of the considered view that the said contention merits no consideration for the following reasons. 9. It appears that from the beginning, the stand of the Department had been that the Tribunal does not have jurisdiction for this case falls essentially under proviso (b) to Section 35B(1) of the Act and that stand had also been upheld by the Tribunal when it chose to dismiss the appeal ex parte on 21st June, 2005 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause (b) if such order relates to - (a) xx xx xx xx (b) a rebate of duty of excise on goods, exported to any country or territory outside India or on excisable materials used in the manufacture of goods which are exported to any country or territory outside India. 11. On examination of the material clearly it appears essentially a question of refund of rebate and not of the duty as sought to be argued. 12. We are of the firm opinion that this issue since pertains to rebate, the Tribunal had no jurisdiction, and therefore, we answer Question (C) in favour of the Department. And therefore, in absence of jurisdiction, its order on merit consequently shall also fall. Thus, Appellant succeeds in this appeal. However, this ..... X X X X Extracts X X X X X X X X Extracts X X X X
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