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TMI Blog2019 (6) TMI 949X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excise Tariff Act, 1985. Writ petitioner filed two refund claims and both refund claims are under Rule 5 of 'Cenvat Credit Rules, 2004' ('CCR Rules' for the sake of brevity). These two refunds were sought for by the writ petitioner under Rule 5 of CCR Rules read with relevant Notifications made under Section 11-B of 'The Central Excise Act, 1944' ('CE Act' for the sake of brevity). 5. Details of refund claims made by the writ petitioner as can be culled out from the case file placed before me, are as follows: Sl.No. Appeal No. & Dated Order & Original and Dated Period Involved Refund Claimed Refund Rejected (1) (2) (3) (4) (5) (6) 1. 476/2018 dt.1/11/2018 81/2018 dated 23.7.2018 January to March 2017 13,78,743/- 13,78,743/- 2. 477/2018 dt.1/11/2018 82/2018 dated 23/7/2018 April to June 2017 40,49,608/- 40,49,608/- 6. Post filing of refund claims, it came to light that the writ petitioner had filed aforesaid refund claims without debiting the refund amounts as provided in the relevant Notification made under Section 11-B of the CE Act. However, in the light of the nature of the order, which this Court is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 35A, as it stood immediately before that day: PROVIDED 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) if such order relates to,- (a) a case of loss of goods, where the loss occurs in transit from a factory to a warehouse or to another factory, or from one warehouse to another, or during the course of processing of the goods in a warehouse or in storage, whether in a factory or in a warehouse; (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; (c) goods exported outside India (except to Nepal or Bhutan) without payment of duty; [(d) credit of any duty allowed to be utilised towards payment of excise duty on final products under the provisions of this Act or the rules made thereunder and such order is passed by the Commissioner (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion that the order passed by the Commissioner (Appeals) is not legal or proper, direct any Central Excise Officer to appeal to the Appellate Tribunal against such order. Explanation : For the purpose of this sub-section, "jurisdictional Chief Commissioner" means the [Principal Chief Commissioner of Central Excise or Chief Commissioner of Central Excise] having jurisdiction over the adjudicating authority in the matter.] (3) Every appeal under this section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the [Principal Commissioner of Central Excise or 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 fortyfive 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been extracted and reproduced supra, reveals that the powers of the Tribunal have not been circumscribed in any manner qua testing no notification plea and there is nothing before this Court to demonstrate that the Tribunal i.e., CESTAT cannot go into the aforesaid aspect of the matter. Therefore, it is clear that an alternate remedy qua impugned order is available for the writ petitioner. 15. With regard to the alternate remedy, it is no doubt, not an absolute Rule. In other words, alternate remedy is a rule of discretion and not a rule of compulsion. Though alternate remedy is a Rule of discretion, in a long line of authorities, the Hon'ble Supreme Court has repeatedly held that exercise of writ jurisdiction on the teeth of alternate remedy, will be when the matter falls under certain specified exceptions. With regard to the long line of authorities, in the considered opinion of this Court one of the important case laws is United Bank of India vs. Satyawati Tondon [(2010) 8 SCC 110]. 16. In Satyawati Tondon case, Hon'ble Supreme Court inter alia held that this Rule of alternate remedy, has to be construed very strictly with regard to the tax, cess and other fiscal statu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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