Custom, Excise & Service Tax Tribunal
M/S Alembic Ltd vs C.C.E., Chandigarh-I on 30 December, 2016
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL SCO 147-148, SECTOR 17-C, CHANDIGARH 160 017 COURT NO. II APPEAL NOs. E/1741, 1742, 1743/2008 [Arising out of the decision communicated vide Letter No. VIII(48)Tech/DBK/Sahar/72/2006/858 dated 28.04.2008 passed by the Commissioner of Central Excise, Chandigarh] Date of hearing: 16.12.2016 Date of decision: 30.12.2016 For approval and signature: Honble Mr. Devender Singh, Member (Technical) =======================================================
M/s Alembic Ltd.
:
Appellant(s) VS C.C.E., Chandigarh-I :
Respondent(s) ======================================================= Appearance:
Shri Shailesh Vyas, Advocate for the Appellant(s) Shri Atul Handa, A.R. for the Respondent(s) CORAM:
Honble Mr. Devender Singh, Member (Technical) FINAL ORDER NO. 61785-61787/2016 Per : Devender Singh
In all these appeals, the appellants have appealed against the order of Commissioner of Central Excise, Chandigarh, communicated vide Letter No. VIII(48)Tech/DBK/Sahar/72/2006/858 dated 28.04.2008. The appellants had made an application for fixation of brand rate of duty drawback. The Commissioner has rejected the application on the ground that the application filed on 21.08.2006 is beyond the normal period of 60 days from the let export date (which is 09.06.2006). The delay was not condoned by the Commissioner as he did not find the reasons for late filing as convincing. Against the said rejection, the appellants are before this Tribunal.
2. Shri Shailesh Vyas, Ld. Advocate for the appellants submits that the Tribunal may condone the delay and direct the lower authority to process their application. He relied upon the following judgments:
(i) Shovec Industries Ltd. vs. U.O.I. reported in 2008 (221) ELT 328 (Guj.) = approved by Apex Court as reported in 2010 (249) ELT A110 (S.C.)
(ii) Rallis India Ltd. vs. CCE, Bhopal reported in 2006 (202) ELT 845 (Tri.-Del.)
(iii) Amber Distilleries Ltd. vs. CCE, Thane reported in 2016 (337) ELT 602 (Tri.-Mum.)
(iv) Wipro Infotech Ltd. vs. U.O.I. reported in 2001 (130) ELT 27 (Kar.)
(v) Phil Corporation Ltd. vs. U.O.I. reported in 2004 (168) ELT 24 (Bom.)
3. Shri Atul Handa, Ld. AR appearing on behalf of the Revenue stated that the Tribunal has no jurisdiction in the matters related to drawback.
4. Heard both the parties and perused the records.
5. The appellants have filed their appeals under Section 35B of the Central Excise Act, 1944. Unlike Section 129A of the Customs Act, 1962, which ousts jurisdiction of this Tribunal to hear the appeals pertaining to drawback matters, Section 35E does not have such a proviso to exclude the jurisdiction of the Tribunal from drawback matters. The Tribunal, while admitting such appeals, has taken differing views on whether the appeals are to be maintained. In the case of Rallis India Ltd. vs. CCE, Bhopal (supra), which was a Customs appeal [C/999-1000/2006-SMB(BR)], a single member bench of this Tribunal allowed the appeal pertaining to delay in filing drawback claim and remanded the matter to lower authorities to process the claim. In another case of Amber Distilleries Ltd. vs. CCE, Thane (supra), which was also a Customs appeal [C/85129/2016-Mum], a division bench entertained the appeal for condonation of delay in a drawback brand rate application and remanded the matter. In another case of Burckhardt Compression (India) Pvt. Ltd. vs. CCE, Pune-III reported in 2016-TIOL-1475-CESTAT-MUM, which was an Excise appeal [E/153/2012], a single member bench of this Tribunal dismissed the appeal as non-maintainable. In this case, the application for fixation of brand rate had been rejected by lower authorities. In another case of I.O.C.L. vs CCE, Haldia reported in 2009 (241) ELT 592 (Tri.-Kol.), which was also an Excise appeal [E/EDM-531 and E/EDM-535-536/2005], a division bench of this Tribunal has held that the Tribunal has no jurisdiction to relax the Drawback Rules, 1965 and the appeals were dismissed.
6. In view of the differing decisions of the Tribunal in entertaining the appeals pertaining to drawback matters, the issue is placed before Honble President for referring it to the Larger Bench to decide the following question of law:
whether the appeals pertaining to payment of drawback as provided in Chapter - X of the Customs Act, 1962 and the rules made thereunder including those for condonation of delay in submitting brand rate applications are maintainable before the Appellate Tribunal under the Central Excise Act, 1944. (Order pronounced in the court on 30.12.2016) Devender Singh Member (Technical) RAS 4 E/1741, 1742, 1743/2008
-CHD