The Bold Voice of J&K

Appeals for excise duty rebate on export do not fall in Tribunal’s jurisdiction: DB

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JAMMU: A Division Bench (DB) of State High Court comprising Acting Chief Justice Ramalingam Sudhakar and Justice Sanjeev Kumar observed that Customs, Excise and Service Tax Appellate Tribunal had no jurisdiction to entertain the appeals regarding rebate of excise duty on export.
This significant observation came in two separate Letter Patents Appeals (LPAs) filed by the Revenue in terms of Section 35G of the Central Excise Act, 1944 posing a common question of law for determination of this Court, whether the Tribunal had jurisdiction to decide the appeal in view of 1st proviso to Section 35B of the Central Excise Act, 1944, especially in view of the law laid down by the Supreme Court in 2014(302),ELST A90(S.C.)?
In the LPA it has been submitted that the respondents are industrial units situated at SIDCO Industrial Complex, Kathua and are engaged in the manufacture of Reclaim Rubber Butyl falling under Chapter heading 40003000 of the 1st Schedule to the Central Excise Tariff Act, 1985. They have been availing Cenvat Credit on various inputs and capital goods used in or in relation to the manufacture of final product (export goods) under Cenvat Credit Rules, 2004. The respondents have also been availing the facility of refund in terms of Notification No.01/2010-CE dated February 6, 2010. The respondents exported their finished goods manufactured in their respective units and claimed rebate on duty in terms of Notification No.19/2004-C.E.(N.T) dated September 6, 2004.
The claim put forth by the respondents was rejected by the Jurisdictional Assistant Commissioner of Central Excise Division, Jammu. The respondents went in appeal before the Commissioner (Appeals), Chandigarh-II. The appeals filed by the respondents were also dismissed.
The respondents challenged the orders passed by the Commissioner (Appeals) before the Customs, Excise and Service Tax Appellate Tribunal. By a common order dated July 27, 2016, the Tribunal accepted the appeals preferred by the respondents and impugned orders passed by the Commissioner (Appeals) against the respondents were set aside. The common order passed by the Tribunal in favour of the respondents has been challenged by the Revenue by way of instant appeals.
DB found that there is substance in the plea taken by the appellant that in terms of the first proviso to Section 35B (1) of the Act, the appeal before the Tribunal was not maintainable as the orders passed by the Commissioner (Appeals) as well as the Jurisdictional Assistant Commissioner relate to the rebate of duty of excise on goods, exported to any country or territory outside India or on excise-able materials used in the manufacture of goods which are exported to any country or territory outside India.
After going through the sections, Division Bench observed that it is clear that if the order relates to aforesaid matter, the same would not be amenable to the appellate jurisdiction of the Tribunal and the remedy would be as provided under Section 35EE(1) of the Act. It is the central government alone which can annul and modify any order passed under Section 35A of the Act which is in the nature referred to in the first proviso to Sub Section (1) of Section 35B of the Act. With these observations, Division Bench set aside the order impugned.

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