9911796707
TMI Blog2020 (10) TMI 532X X X X Extracts X X X X X X X X Extracts X X X X ..... is settled law that the provision of Section 35D (3) of the Act has to be dealt as it is and no word can be edited or deleted while interpreting the said provision. The Hon'ble Apex Court in the case of Commercial Taxes Officer vs. Bombay Machinery Store [ 2020 (4) TMI 769 - SUPREME COURT ] held that we are of the view that interpretation of the Division Bench of Delhi High Court given the case of Arjan Dass Gupta does not lays down correct position of law. In the event, the authorities felt any assessee or dealer was taking unintended benefit under the aforesaid provision of the Act, 1956, then proper course would be legislative amendment. The Tax Administration authority cannot give their own interpretation of legislative provisions on the basis of their own perception of trade practice. The administrative exercise, in effect, would result in supplying words to legislative provisions, as if to cure omissions of the legislature. The Single Member Bench of this Tribunal is having the jurisdiction to decide the issue of interest irrespective of monetary limit. The objections raised by the Revenue are answered that the Single Member Bench of this Tribunal is having the jurisdict ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and is to be decided by Division Bench. Further, the Ld. AR produced the judgement passed by the Hon ble Karnataka High Court in the case of REVA Electric Car Pvt. Ltd. vs. Commissioner of Central Excise, Bangalore-I 2011 (269) ELT 8 (Kar.) to say that the interest issue can be heard by only division bench. During the course of argument Sh. Rajiv Gupta Ld. Commissioner (AR) also argued that in terms of Section 35D (3) of the Central Excise Act, 1944 the Single Member Bench of this Tribunal have no jurisdiction to deal the said issue. To support of this contention, he relied on the decision by the Division Bench of this Tribunal in the case of Dhampur Sugar Mills Ltd. CCE Meerut 2006 (204) ELT 106 (Tri.-Del.). 3. The matter was taken up on 29.09.2020 for hearing. 4. After examination,as per Public Notice No. 2 dated 10.08.2020 issued by the Hon ble President of this Tribunal, any party desirous of getting an appeal heard by video conferencing may send a request by e mail. Accordingly, it was held that there is no bar for the respondent for a request for hearing the appeal through video conferencing. 5. Thereafter, this Tribunal asked the Ld. Counsel of the respondentto rebutthe obje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his Tribunal, and the appellate authority granted interest on deposit from the date of deposit. Hence the jurisdiction to hear the case of interest of amount more than 50 lakhs lies with Division Bench only. Here, it is pertinent to mention that the party had never raised any objection on the jurisdiction of the Division Bench of the Hon ble Tribunal in that case of Som Flavour masala Ltd. Supra. iv. That as per Section 35D(3) of the Central Excise Act, 1944 (as amended), the matter lies under the jurisdiction of the Hon ble Division Bench of the Tribunal instead of the Hon ble Single Member Bench as the amount of interest involved in the matter is more than 5.5 crores. (Calculation Sheet placed on record during hearingon 29.09.2020) v. That as per Section 35D(3) of the Central Excise Act, 1944 (as amended) reproduced as below, the matter lies under the jurisdiction of the Hon ble Division Bench of the Tribunal instead of the Hon ble Single Member Bench. (3) The president or any other member of the Appellate Tribunal authorised in this behalf by the President may, Sitting Singly, dispose of any case which has been allotted to the bench of which he is a member where- (a) in any disp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lic Notice No.2 dated 10.08.2020. The same issue may kindly be decided alongwith this prayer. It is, therefore,humbly prayed that the listed case be transferred and listed before Hon ble Division Bench of the Tribunal. 9. The Ld. Counsel for the Respondent also filed written submission as under:- The jurisdiction of the Single Member Bench of CESTAT is derived from Section 35 D of the Central Excise Act 1944. Procedure of Appellate SECTION 35D. Tribunal The . - (1) provisions of sub-sections (1), (2), (5) and (6) of section 129C of the Customs Act, 1962 (52 of 1962), shall apply to the Appellate Tribunal in the discharge of its functions under this Act as they apply to it in the discharge of its functions under the Customs Act, 1962. *] * * [(2) The President or any other member (3) of the Appellate Tribunal authorised in this behalf by the President may, sitting singly, dispose of any case which has been allotted to the Bench of which he is a member where - (a) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment is in issue or is one of the points in issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of [duty of excise and interest, if any, paid on such duty] in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such [duty and interest, if any, paid on such duty] had not been passed on by him to any other person : ] * * * * [ If, [(2) on receipt of any such application, the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] is satisfied that the whole or any part of the [duty of excise and interest, if any, paid on such duty] paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund : Section 11 B does not prescribe any no monetary jurisdiction for filing of Application for Refunds. The Deputy Commissioner is the authority before which application for refund is to be filed irrespective of the amount . The Deputy Commissioner can sanction the Refund or show cause to the applicant as to why refund should not be rejected. The show cause notice is adjudicated by the Deputy Commissioner. Appeals against the order of the Deputy Commissioner lies to the Commissioner (Appeals) under Section 35 of the Central Excise Act. 3) Jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... henceforth powers of adjudication both in Central Excise and Service Tax shall be exercised, based on the monetary limit of the duty/tax/credit involved in a case, as under :- Sl. No. Central Excise Officer Monetary Limits of duty/tax/credit demand for Central Excise and Service Tax 1. Superintendent Not exceeding rupees ten lakh 2. Deputy/Assistant Commissioner Above ten lakh but not exceeding rupees fifty lakh 3. Additional/Joint Commissioner Above fifty lakh but not exceeding rupees two crore 4. Commissioner Without limit i.e. cases exceeding rupees two crores (i) Cases involving taxability, classification, valuation and extended period of limitation shall be kept out of the purview of adjudication by Superintendents. Such cases, upto rupees 10 lakhs, shall also be adjudicated by the Deputy Commissioner/Assistant Commissioner in addition to the cases exceeding rupees 10 lakhs but not exceeding rupees 50 lakh. (ii) The above monetary limits are hereby prescribed for all categories of cases, except the following : (a) cases of refund (including rebate) under Section 11B of the Central Excise Act, 1944, as made applicable to Service Tax cases also under Section 83 of the Finance Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not on the basis of the amount of interest. Therefore, the amount of duty on which interest has not been paid, should be the monetary criterion for deciding the authority to decide such cases. 5) In the case of Dhampur Sugar Mills Ltd vs CCE Meerut 2006(204) ELT 106 the issue was whether the Single Member was right in transferring the appeal involving only interest to Double Member bench on the argument of the Appellant that the jurisdiction of the Single Member bench was restricted to duty/ fine/penalty, if it did not exceed 10 lakhs. CESTAT held that 4.2 The question of liability to pay interest will ordinarily arise in the context of disputes relating to duty and/or penalty and will not stand excluded under clause (a) of Section 35-D(3) unless there is dispute involved in relation to rate of duty, value of goods, or the duty and/or penalty exceeds ₹ 10 lakhs. Mere disputes regarding interest are not excluded. Sub-section 3(a) and (b) of Section 35-D, clearly indicates that all disputed cases other than the excluded categories, can be heard by a member of the Appellate Tribunal sitting Single. The issue was not decided by the Bench based on the quantum of interest. The said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 46) E.L.T. 599 (Tri. - Ahmd.) The Single Member held that it had jurisdiction to hear the case, but transferred the case to DB The case of Refund was allotted to DB and was decided by DB. The case could have been heard by a Single Member bench also. Merely because DB heard the issue of Refund does not mean that single member bench is barred from hearing the interest on Refund. The case before DB has no bearing in the instant case as the issue therein was of Refund which has been sanctioned. 8 The decision of the Karnataka High Court in the case of Reva Electric Car Ltd vs C C E Banglore 2011 (269) ELT 8 Is sub silentio, having been passed without discussing the true import of Section 35 D and has no precedent value. Salmond on Jurisprudence Twelfth Edition p.15h states that a judgement passed without argument, without reference to the crucial words of the rule, and without any citation of authority is not a binding precedent and cannot be followed. The author also states that precedents sub silentio and without arguments are of no moment. The Hon ble Supreme Court in umpteen judgements has declined to rely upon judgements which have been passed without considering the law. D J Malp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods, or duty or fine or penalty is more than ₹ 50 Lakhs. The intent of the legislature is very much clear in mind that not to include in the exclusion clause the issue of interest. The same view was taken by this Tribunal in the Case of Dhampur Sugar Mills Ltd. (supra) which has been relied upon by the Ld. AR wherein this Tribunal observed as under:- Mere disputes regarding interest are not excluded. Sub-section 3(a) and (b) of Section 35-D, clearly indicates that all disputed cases other than the excluded categories, can be heard by a member of the Appellate Tribunal sitting Single. 12. Further, The Revenue has relied on the decision in the case of Deep Construction Co. (supra) wherein the Tribunal hold that the Member sitting singly can decide matter only if amount of fine or penalty involved does not exceed fifty lakhs rupees as valuation of penalty under dispute more that ₹ 50 Lakhs, therefore the order passed by Single Member Bench of the Tribunal is without jurisdiction. The fact of the said issue is very much clear that there was a dispute where penalty was more than ₹ 50 Lakhs therefore the Hon'ble High Court has rightly held that the Single Member B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed upon here to decide whether the impugned order rejecting the Compounding of Offences Application as premature is correct or not. In view of the above, we find that there is no inherent lack of jurisdiction for the Single Member Bench in hearing the appeals and miscellaneous applications and in passing the Interim Order No. I.O./120-123/2016, dated 21-3-2016. 14. In view of the above, we find no lack of jurisdiction nor any infirmity in the interim order dated 21-3-2016, and hence the same needs no re-call. We hold accordingly. 15. Further, I find in the case of D. J. Malpani vs. Commissioner of Central Excise, Nashik in Civil Appeal No. 5282 of 2005 dated 9.04.2019 , the Hon'ble Apex Court has clearly held that a decision held not to be binding since it was decided without argument, without reference to crucial words of rule and without any citation of authority, therefore, would not be followed. 16. Admittedly, the reliance placed by the Ld. AR in the case of Reva Electric Car Pvt. Ltd. (supra) to say that the Hon'ble High Court has dealt with the issue of interest is not acceptable as in the said case the interest was not only the issue but the interest alongwith the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
