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TMI Blog2014 (9) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... fee is concerned, we do not express any opinion at this stage although there was request from the Bar to look into this aspect and pass order. Once we hold that the Tribunal has no jurisdiction to entertain a revisionary matter, we are not inclined to decide the appeal fees payable on refund appeal which shall be mere academic and shall be prejudging the issue prematurely. - Decided against the assessee. - Misc. Order Nos. 125-126/2013-CR - - - Dated:- 15-4-2013 - Shri D.N. Panda, Member (J) and Manmohan Singh, Member (T) Shri J.K. Mittal, Advocate, for the Appellant. Shri N. Pathak, DR, for the Respondent. ORDER Against objection of Registry requiring this appellant to deposit fees on the basis of quantum of refund the appellant being aggrieved requested the Registrar to place the matter before the Bench for appropriate order. An application addressing to the Registrar was filed on 11-12-2012 in that behalf. 2. On 13-12-2012 it was mentioned before the Bench that there is an anomaly in charging filing fees by the Registry in respect of appeal involving refund. On such mention, registry was directed to make a compilation of the orders of the Tribunal, if an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is subject to revisionary jurisdiction under Section 35EE of Central Excise Act, 1944 read with first proviso to Section 35B(1) thereof. 6. Repelling the arguments of Revenue it was submitted by learned Counsel Shri J.K. Mittal that the issue of refund arising out of input service used in export are involved in 3 appeals. Two appeals are before this Bench and the 3rd appeal which is registered as E/3836/2012-SM was disposed by the Single Member Bench on 21-12-2012 [2013 (31) S.T.R. 360 (Tri.-Del.)] entertaining the appeal under the jurisdiction conferred by Section 86 of Finance Act, 1994. Therefore, denial to entertain present two appeals shall be contrary to judicial discipline. 7. Shri Mittal says that Section 35EE of Central Excise Act, 1944 is to be interpreted to construe that Central Government may on an application of any person aggrieved by any order passed u/s 35A shall annul or modify that order. That Section requires exercise of power relating to rebate issue by a revisionary authority. Such redressal measure does not mean that appeal order passed by Commissioner (Appeals) under Section 85 of Finance Act, 1994 is not appealable before Tribunal under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated in that section. 11. Arguing on the chargeability of appeal fee, ld. Advocate submits that appeal fee payable is against a demand of tax but not against refund of tax. Therefore, the Deputy Registrar s demand of appeal fees in appeal involving issue of refund is contrary to law. The Dy. Registrar citing five judgments of the Tribunal misconceived the law while none of the judgments are applicable to the present context of charging of appeal fees in a refund appeal. 11. Heard both sides and perused the record. Appeal filed under Diary No. 5169/2012 related to the period April, 2010 to Sept., 2010 and Appeal under Diary No. 5171/2012 relates to 1-1-2010 to 31-3-2010. 12. We have examined the jurisdiction aspect first. For the convenience of reading Section 83 of Finance Act, 1994 prior to 28-5-2012 read as under : 83 The provisions of the following Section of the Central Excise Act, 1994, as in from time to time, shall apply, so far as may be, in relation to service tax as they apply in relation to a duty excise :- 9C, 9D, 11B, 11BB, 11C, 12, 12A, 12B, 12C, 12D, 12E, 14, 14AA, 15, 33A, 35F, 35FF, to 350 (both inclusive), 35Q, 36, 36A, 36B, 37A, 37B, 37C, 37D, 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion relates is one lakh rupees or less; (b) two hundred rupees, where the amount of duty and interest demanded, fine or penalty levied by any Central Excise Officer in the case to which the application relates is more than one lakh rupee. (4) The Central Government may, of its own motion, annul or modify any order referred to in sub-section (1). (5) No order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value shall be passed under this section, - (a) In any case in which an order passed under Section 35A has enhanced any penalty or fine in lieu of confiscation or has confiscated goods of greater value, and (b) In any other case, unless the person affected by the proposed order has been given notice to show cause against it within one year from the date of the order sought to be annulled or modified. (6) Where the Central Government is of opinion that any duty of excise has not been levied or has been short-levied, no order levying or enhancing the duty shall be made under this Section unless the person affected by the proposed order is given notice to show cause against it within the time limit specified in Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of Section 35EE and 35B of Central Excise Act, 1994 throw light that administration of justice relating rebate issue is excluded from scrutiny by Tribunal in terms of Section 35EE read with first proviso to Section 35B of Central Excise Act, 1944, Power u/s 35EE of Central Excise Act, 1944 has been conferred on Revisionary Authority to exercise jurisdiction on rebate issues. This may be probably that Revisionary Authority being in Revenue administration shall have appropriate opportunity to understand the intention of notification governing rebate claim without burdening Tribunal on such subject and power not expressly conferred on Tribunal which is a creature of the statute cannot be inferred to have been vested. 16. It may be stated that Section 129 read with Section 129A of Customs Act, 1962 has created this Tribunal requiring Customs, Central Excise and Service Tax appeals to be heard by it without acting as revisionary authority. 17. Section 83 of Finance Act, 1994 has not taken away substantive right of redressal against wrong done to the aggrieved in respect of orders referred to in first proviso to Section 35B of the Central Excise Act, 1994. Certain applicable sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... input service used in export of service. 20. In the present case first of all admissibility of rebate under Notification No. 12/2005-S.T., dated 19-4-2005 is to be decided and decision on such issue is left to revisionary authority (without denying the right to redressal) under Section 83 of Finance Act, 1994, read with Section 35EE of Central Excise Act, 1944. Any construction that Section 35EE appearing under Section 83 of Finance Act, 1994 not appearing under Section 86 takes away the right of redressal and Section 35EE not appearing under Section 83 at the material time confers jurisdiction on Tribunal to hear rebate appeal is erroneous, Adopted provisions of Central Excise Act, 1944 in Section of provisions of Central Excise Act, 1944 is not given go and spirit of provisions of Central Excise Act, 1944 is not given go bye and the interpretation that defeats the object of the statute is avoided to achieve the object of adopting statute. The appellant is accordingly unable to gain from the decision in British Physical Laboratory (supra) cited by it. This leaves no scope for the appellant to say that revisionary authority is ousted of his jurisdiction to entertain rebate clai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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