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TMI Blog2024 (8) TMI 853X X X X Extracts X X X X X X X X Extracts X X X X ..... al itself before this Tribunal and retrain from expressing any view on the merit of case in so far as it relates to transfer/refund of credit. Therefore, without getting into the eligibility of refund or transfer under Tran-A or otherwise in the facts of the case, on the short question of maintainability of this appeal before this Tribunal itself, the appeal is liable to be dismissed - Appeal is dismissed being non-maintainable. - HON BLE Mr. A. K. JYOTISHI , MEMBER ( TECHNICAL ) Shri Akhil Gupta , Advocate for the Appellant Shri B. Sangameshwar Rao , Authorised Representative for the Respondent ORDER [ ORDER PER : A. K. JYOTISHI ] M/s Mordor Intelligence Pvt Ltd., (hereinafter referred to as appellant) have filed service tax appeal before this Tribunal against the Order-in-Appeal No. Nil dated 18.03.2024. They have prayed for setting aside of the said impugned Order-in-Appeal No. Nil dated 18.03.2024 amongst other prayers. 2. The issue, in brief, is that the appellant had approached Jurisdictional CGST authorities for transfer / of refund of Cenvat Credit of Rs. 37,80,286/-. On adjudication, the concerned authority rejected their claim vide order dated 12.01.2022. He had examine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titlement transfer/refund of credit on merits, as follows: (a) Terex India Pvt Ltd., Vs Commissioner of GST CE, Salem (3) Appeal No. C/30278/2024 [2022 (63) GSTL 238 (Tri Chennai)] (b) Circor Flow Technologies India Pvt Ltd., Vs Pr. Commissioner of GST CE, Combatore [2022 (59) GSTL 63 (Tri-Chennai)] (c) USV Pvt Ltd., Vs Commissioner of Central Excise ST, Daman [2023 (5) Centax 7 (Tri-Ahmd)] (d) Union of India Vs Slovak India Trading Co. Pvt Ltd., [2006 (201) ELT 559 (Kar)] Therefore, according to him the present appeal is maintainable before this Tribunal. 6. On the other hand, Learned DR has raised a preliminary objection on the grounds that the said appeal is not maintainable in view of statutory provisions under Section 35 and especially under Section 35B of Central Excise Act as made applicable to Service Tax, as there is no order passed by the Commissioner (Appeals) under Section 35A in this case. The letter dated 18.082024, which is being referred to by the appellant as an interim order or interlocatory order, is nothing but an acknowledgment cum Deficiency Memo issued by the Superintendent-Registry and not by the Commissioner (Appeals). Therefore, without getting into the me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterim in nature as contended by Revenue and therefore is appealable under Section 129A before CESTAT. In this case, it is not a case that Commissioner (Appeals) has passed any interim order or administrative order, which could have been considered as appealable order keeping in view the ratio of the judgment cited by the Learned Advocate. It is a case, where there is no speaking order or for that matter any other order or decision has been passed by the Commissioner (Appeals) and therefore it would not be covered within the ambit of Section 35B(1)(b). 10. Therefore, this order cannot be held to be an appealable order where the appeal could lie before this Tribunal. 11. Further, though there is some force in the argument of the Learned Advocate that the said letter is neither speaking nor correct on merit, however, unless it s maintainability before this Tribunal is decided, this Bench cannot enter into the merit of the case, per se. 12. Learned Advocate s reliance on the judgment passed by the Larger Bench in the case of M/s Bosch Electrical Drive India Pvt Ltd., is also not understood in its correct perspective as the observations made by the Larger Bench, especially in para 44, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the period of limitation prescribed by Section 27 does not apply either to a suit filed by the importer or to a writ petition filed by him and that in such cases the period of limitation would be three years. Learned counsel refers to certain decisions of this Court to that effect. We shall assume for the purposes of this appeal that it is so, notwithstanding the fact that the said question is now pending before a larger Constitution on Bench of nine Judges along with the issue relating to unjust enrichment. Yet the question is whether it is permissible for the High Court to direct the Authorities under the Act to act contrary to the aforesaid statutory provision. We do not think it is, even while acting under Article 226 of the Constitution. The power conferred by Article 226/227 is designed to effectuate the law, to enforce the Rule of law and to ensure that the several authorities and organs of the State act in accordance with law. It cannot be invoked for directing the authorities to act contrary to law. In particular, the Customs authorities who are the creatures of the Customs Act, cannot be directed to ignore or act contrary to Section 27, whether before or after amendme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion to ignore the substantive provisions and the time limit prescribed therein. The decision of the Bombay High Court in the case of Uttam Steel Ltd. (supra) was rendered in a different factual background. It was a case where the refund clam was filed beyond the period of six months which was the limit prescribed at the relevant time, but within the period of one year. When such refund claim was still pending, law was amended. Section 11B in the amended form provided for extended period of limitation of one year instead of six months which prevailed previously. It was in this background, the Bombay High Court opined that limitation does not extinguish the right to claim refund, but only the remedy thereof. The Bombay High Court, therefore, observed as under: 32. In present case, when the exports were made in the year 1999 the limitation for claiming rebate of duty under Section 11B was six months. Thus, for exports made on 20th May 1999 and 10th June 1999, the due date for application of rebate of duty was 20th November 1999 and 10th December, 1999 respectively. However, both the applications were made belatedly on 28th December 1999, as a result, the claims made by the petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X
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