Custom, Excise & Service Tax Tribunal
Central Excise Commissioner, Thane Ii vs M/S Dhana Singh Textile Pvt. Ltd on 14 July, 2014
IN THE CUSTOMS, EXCISE AND SERVECE TAX APPELLATE TRIBUNAL, WEST ZONAL BENCH AT MUMBAI COURT NO. II APPEAL NO. E/169/05 & E/89847 to 89857/13 (Arising out of Order-in-Appeal No. CPA/113 to 123/TH-II/2004 dated 14.09.2004 passed by the Commissioner of Central Excise (Appeals) Mumbai-IV.) For approval and signature: Honble Shri Anil Choudhary, Member (Judicial) =====================================================
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Central Excise Commissioner, Thane II
: Appellant
Versus
M/s Dhana Singh Textile Pvt. Ltd.
: Respondent
Appearance
Shri Prasad Paranjpe, Advocate
: For Appellant
Shri S.G. Dewalwar, Addl. Commissioner (A.R.)
: For Respondent
CORAM:
HONBLE SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL)
Date of Hearing : 14.07.2014 Date of Decision: 14.07.2014
ORDER NO.......................................................
Per: Anil Choudhary:
The Revenue has filed these appeals against the Order-in-Appeal No. CPA/113 to 123/TH-II/2004 dated 14.09.2004 passed by the Commissioner of Central Excise (Appeals) Mumbai-IV.
2. The brief facts of the present case are that M/s Dhana Singh Textiles Pvt. Ltd., the RespondentAssessee herein, is engaged in processing of man-made fabrics. The Assessee had processed certain fabrics belonging to G M International the Merchant Exporter, and removed the same for export on payment of excise duty. The rebate in respect of the excise duty paid on exported fabrics was claimed by the Respondent-assessee after obtaining the disclaimer from GM International, the Merchant Exporter.
2.1 For carrying out processing of fabrics for G M International, the respondentssessee was supplied grey fabric by Hartex Exports Pvt. Ltd. who was manufacturer of grey fabrics. Hartex Exports Pvt. Ltd. had claimed the benefit of EPCG licence for certain machinery used for manufacture of grey fabrics and to be able to substantiate discharge of its export obligation. Name of Hartex was indicated on the shipping bill, prepared for the purpose of export of impugned goods whereas name of respondent-assessee appeared on ARE-1 form. The rebate claims filed by the Respondent-Assessee were sanctioned by the original authority. However, the sanction of rebate was unsuccessfully challenged by the Revenue before Commissioner (Appeals), on the ground that shipping bills contained the name of Hartex Exports Pvt. Ltd.
2.2 The present appeals are against the order of the learned Commissioner (Appeals) only on the ground that the learned Commissioner (Appeals) lacks power of remand and hence he ought not to have remanded the matter for verification of certain documents, as mentioned in the impugned order.
3. The Appellant-Revenue has filed the present eleven Appeals before this Tribunal against the Order-in-Appeal Nos. CPA/113-123/Th-II/2014 dated 14.09.2004 by which the learned Commissioner (Appeals) has rejected the Appeals filed by the Revenue, against the various Orders-in-Original by which the Assessee was granted rebate claims.
3.1 The only ground in the present Appeals before the Tribunal filed by the Appellant-Revenue is that-whether, after the 11 May 2001, the learned Commissioner (Appeals) is empowered to dispose of an Appeal by way of remand under Section 35A (3) of the Central Excise Act, 1944, when the provisions of the said section were amended divesting powers of the learned Commissioner (Appeals) to remand the matter. The Appellant-Revenue relies on the decision of the Larger Bench of this Tribunal in the case of CCE vs. Oripol Industries 2003 (155) ELT 278 (LB).
3.2 The ground of appeal by the Revenue before the learned Commissioner (Appeals) was however, that G M International, which is a Merchant Exporter, exported all the goods, whereas, the ARE-1 document pertaining to the rebate claim indicated the manufacturer as M/s Dhana Singh Textiles Private Limited and the shipping bills indicated Hartex Exports Pvt. Ltd. as the manufacturer. Since Rule 18 allows rebate claim to the manufacturer, the Revenue sought to challenge the Orders-in-Original granting rebate to respondent M/s Dhana Singh Textiles Private Limited, while shipping bills indicated manufacturer as Hartex Exports Pvt. Ltd.
3.3 The learned Commissioner (Appeals) after recording the facts and going through the submissions made before him has concluded that the procedure adopted by the Respondent-Assessee is a well accepted practice. The Respondent-Assessee has complied with the required procedure to claim rebate. The learned Commissioner (Appeals) also recorded that it is not in dispute that excise duty has been paid by the Respondent-Assesse and also the fact that the goods have actually been exported. For both these submissions, the learned Commissioner (Appeals) has placed reliance on the certification done by the Range Superintendent at the factory gate, at the time of export, evidencing payment of duty and by the customs authorities, evidencing actual export.
3.4 However, the learned Commissioner (Appeals) has remanded the matter back to the learned Adjudicating Authority to carry out necessary scrutiny of the documents. It was not a remand for de-novo adjudication but only for verification of documents.
4. At the outset it is submitted by the Respondent-Assessee that the departments appeal before the learned Commissioner (Appeals) was only on the ground that rebate claim should not have been sanctioned, as the rebate claim was sanctioned wrongly to M/s Respondent-Dhana Singh Textiles Private Limited, whereas, the shipping bill indicated the manufacturer as Hartex Exports Pvt. Ltd. After being satisfied that it is M/s Dhana Singh Textiles Private Limited, which had carried out the processing on the grey fabrics and paid excise duty on the goods exported, as duly certified by the Range Superintendent, the learned Commissioner (Appeals) ought to have rejected the Revenues appeal only on this finding, rather than going into a new tangent of adequacy of the scrutiny carried out by the lower authorities, which was not a ground of appeal before him.
4.1 It is submitted that the direction of the learned Commissioner (Appeals) to the lower authorities to verify the documents, is within the powers of the learned Commissioner (Appeals) and the said direction does not amount to a remand. The instructions to the lower authorities is only to verify the documents and the main issue in the appeal whether mentioning of name of Hartex Exports Pvt. Ltd. on the shipping bill & ARE-1 will not disentitle the Respondent-Assessee to claim rebate, has been decided in favour of the Assessee-Respondent.
4.2 The Respondent-Assessee further relies on the decision of this Tribunal in the case of CCE vs. Sai Advantium Ltd.- 2012 (27) STR 46 (T), wherein, the Tribunal has upheld sending back the matter for verification by the Ld. Commissioner (Appeals) and rejecting the Departments appeal on the only ground that learned Commissioner (Appeals) does not have power of remand. Same was the view taken by the Tribunal in the case of CCE vs. Honda Seil Power Products Ltd. 2013 (287) E L T 353 ( Tri Del) and Commissioner of Central Excise, Meerut, vs. Singh Alloys (P) Ltd. 2012 (284) E L T 97 ( Tri Del).
4.3 In any case reliance by the Department on the decision of the Larger Bench in the case of Oripol Industries is of no avail, as the same has been reversed by the Honble Gujarat High Court in the case of CCE, Ahmedabad vs. Medico Labs 2004 (173) E L T 117 (Guj).
4.4 In any case the Appeals filed by the Revenue before this Tribunal is not maintainable as the same arises out of the dispute in relation to rebate of excise duty on exported goods. In view of the first proviso (b) to Section 35B (1) of Central Excise Act, 1944, this Tribunal shall not have jurisdiction to entertain the present appeal. This view is based on the judgement of the Honble Gujarat High Court in the case of CCE vs. Imitiaaz Traders 2012 (26) STR 74 (Guj).
4.5 While the Revenue may contend that the present appeal is only against the part remand order of the learned Commissioner (Appeals), and not with respect to the rebate, even the same is beyond the jurisdiction of this Tribunal as the underlined issue is that of rebate of excise duty, which is beyond the jurisdiction of this Tribunal. In the context of remand order in the matter of valuation, the Honble High Court of Kolkata in the case of A N Impex 2014 (305 ) ELT 38 (Cal) has held that remand order of the Tribunal where the underlying issue (i.e. of valuation), is not appealable before the High Court, then even the remand order in such matter should not be appealable before the High Court. Applying the same ratio, since the underlying issue is of rebate of excise duty, on exported goods, which is beyond the jurisdiction of this Tribunal even the remand order in the context of rebate, will also be beyond the jurisdiction of this Tribunal, to entertain the Appeal.
5. Having considered the rival contentions, and perusing the records, I find that there are categorical findings on merits in the Order-in-Original granting refund. Thus, there was no need of any remand by the Commissioner (Appeals). With these observations, I hold that as the issue relates of rebate claim on export of goods, the present appeal is not maintainable before this Tribunal, accordingly the appeal is dismissed.
(Pronounced in open Court) (Anil Choudhary) Member (Judicial) Sp 7