Custom, Excise & Service Tax Tribunal
M/S S. A. I. L vs Commissioner Of Central Excise, Bbsr Ii on 25 September, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
EAST REGIONAL BENCH : KOLKATA
Ex. Appeal No.677/11
Arising out of O/A No.36/CE/BBSR II/2011 dated 19.04.2011 passed by Commr. (Appeals) of Central Excise, Customs & Service Tax, BBSR II.
For approval and signature:
DR. D. M. MISRA, HONBLE JUDICIAL MEMBER
1. Whether Press Reporters may be allowed to see
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982? :
2. Whether it should be released under Rule 27 of the
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not? :
3. Whether His Lordship wishes to see the fair copy
of the Order? :
4. Whether Order is to be circulated to the Departmental
Authorities? :
M/s S. A. I. L.
APPELLANT(S)
VERSUS
Commissioner of Central Excise, BBSR II
RESPONDENT (S)
APPEARANCE ShriAbhishekAnand, Adv. for the Appellant (s) ShriSanjam Paul, Supdt. (A.R.) for the Department CORAM:
DR. D. M. MISRA, HONBLE JUDICIAL MEMBER DATE OF HEARING &PRONOUNCEMENT : 25. 09. 2013 ORDER NO.FO/A/71095/2013 Per Dr. D. M. Misra :
This appeal is filed against the Order-in-Appeal No. 36/CE/BBSR II/2011 dated 19.04.2011 passed by Commr. (Appeals) of Central Excise, Customs & Service Tax, BBSR II.
2. Briefly stated the facts of the case are that the Appellant, a Public Sector Undertaking, filed a refund claim on 24.02.2005 for Rs.7,66,643/- being the excess amount of duty paid for clearances to M/s Numaligargh Refinery Ltd. (M/s NRL) during July, 2004 to September, 2004. The refund claim was though sanctioned on 25.10.1995 by the Asst. Commissioner but transferred to consumer welfare fund on the ground of being hit by unjust enrichment. Aggrieved, the Appellant filed an appeal before the ld.Commissioner (Appeals), who vide Order-in-Appeal dated 06.03.1999, remanded the matter to the adjudicating authority for re-examination of the documents. Against the said order of the ld.Commissioner (Appeals), Revenue filed an appeal before the Tribunal and the Tribunal vide its Order No.A-812/Kol/2006 dated 19.09.2006, dismissed the Revenues appeal. The Deputy Commissioner, pursuant to the said remand order of the ld.Commissioner (Appeals), decided the claim afresh and vide his Order dated 20.08.2008, rejected the refund claim again on the ground of unjust enrichment. Subsequently, the Appellant filed an appeal before the ld.Commissioner (Appeals). The ld. Commissioner (Appeals) also rejected the appeal vide Order dated 18.03.2009. Aggrieved by the said Order-in-Appeal dated 18.03.2009, the Appellant filed an appeal before this Tribunal and the said appeal was rejected by this Tribunal on 13.08.2009 for want of clearances from the Committee on Disputes (COD). The Committee on Disputes in considering the application of the Appellant to pursue the appeal before this Tribunal, directed the Appellant to approach the ld. Commissioner (Appeals) for resolving the issue. The Appellant subsequently, filed another appeal in form EA-1 on 18.05.2010 before the ld. Commissioner (Appeals). By the impugned order, the ld. Commissioner (Appeals) dismissed the said second Appeal. Hence the present appeal.
3. The ld.Advocate, ShriAbhishekAnand for the Appellant has submitted that the Appellant had filed the appeal before the ld. Commissioner (Appeals) on 18.05.2010 pursuant to the direction issued to them by the Committee on Disputes on 02nd March, 2010 to approach the ld.Commissioner (Appeals) for resolution of the dispute. It is his submission that within sixty days from the said direction issued by the Committee on Disputes, they had preferred the appeal before the ld. Commissioner (Appeals), hence, the second Appeal before the ld. Commissioner (Appeals) is within time. Thus, the ld. Commissioner (Appeals) has got jurisdiction and shouldhave decided the issue in view of the specific direction of the Committee on Disputes. The ld. Advocate has further submitted that since the issue was decided in their favour by the earlier Order-in-Appeal dated 06.03.1999, therefore, the impugned Order-in-Original dated 20.08.2008, deciding the issue afresh on merit, is bad in law being beyond the scope of remand order of the ld.Commissioner (Appeals) dated 06.03.1999. On merit, the ld. Advocate has submitted that there is no question of any unjust enrichment, as the incidence of duty had never been passed by the Appellant to M/s NRL as M/s NRL did not reimburse the excess duty paid by the Appellant, for which, the said refund claim has been filed with the Department.
4. The ld. A.R. for the Revenue supporting the order passed by the ld. Commissioner (Appeals), has submitted that the ld. Commissioner (Appeals) has rightly rejected the appeal of the Appellant on the ground that on the same issue, Appeal for second time, cannot lie before him as per Sec.35A of CEA,1944. It is his submission that even in cases of remand proceedings, no fresh appeal is filed, but the higher Appellate forum remand the matter to the authority sub-ordinate to it for re-consideration of the issues.He has contended that the ld. Commissioner (Appeals) has rightly observed that the direction from COD to re-consider the issue afresh, is not binding on him being not provided under law. He has submitted that thesecondappeal was filed beyond the statutory period of 60 days and condonable period of 30 days, hence, not maintainable. The appeal is since barred by limitation prescribed under Sec. 35A of CEA,1944 and the ld. Commissioner (Appeals) has no jurisdiction to condone the delay beyond the period of 90 days (60 + 30) in view of the decision of the Honble Supreme Court in the case of Singh Enterprises Vs. CCEx., Jamshedpur reported in 2008 (221) ELT 163 (SC), hence, the present Appeal before this Tribunal, against the said Order is liable to be dismissed.
5. Heard both sides and perused the records. I find that the issue involved in the present case, relates to maintainability of the secondappeal filed by the Appellant under Section 35A of CEA,1944against the rejection of their refund claim in the denovo proceeding. The present litigation has a chequered history. The claim was originally filed on 24.02.1995seeking refund of excess duty paid, which was rejected on the ground of unjust enrichment. Thereafter, the said litigation continued at various levels. Ultimately, a denovo order was passed on 20.08.2008 by the jurisdictional Deputy Commissioner rejecting the refund claim of the Appellant again on the ground of unjust enrichment. An appeal against the said order before the ld. Commissioner (Appeals), was also rejected. The Appellant then carried out the litigation before this Tribunal, and their Appeal before this Tribunal was also rejected for want of clearance from Committee on Disputes(COD) to pursue the appeal before this Tribunal. It is their claim that in the meantime, the Committee on Disputes (COD) though declined permission to the Appellant to pursue the appeal before this Tribunal, however, directed them to approach the ld. Commissioner (Appeals) for resolving the dispute. Consequently, they approached the Commissioner(Appeals) by filling another Appeal against the same Order-in-Original dt.18.05.2010. I find that the ld. Commissioner (Appeals) has rejected their second appeal on the reasoning that the second appeal against the same Order-in-Original cannot lie before him. He has recorded the finding as:
15. Further, in this case the appeal is directed against the order-in-original dated 20.08.2008 of the Assistant Commissioner, against which another appeal has already been filed and decided by this appellate authority earlier i.e. on 18.03.2009. the subsequent appeal in CESTAT by the appellant against it has also been dismissed by Hon ble CESTAT vide order dated 13.08.2009. Another appeal against the same order-in-original cannot be filed as per the provisions of law as there is no order of remand of the earlier Order-in-Appeal (against the impugned order-in-original) from the Honble CESTAT or any other higher appellate forum. This appellate authority cannot entertain two appeals against the same Order-in-Original by the same appellant and cannot pass two different orders. It can only be possible if the Commissioner (Appeals)s order passed earlier is set aside by the Honble CESTAT and remanded back to the Commissioner (Appeals) for a fresh decision.
6. Secondly, his conclusion is that the Committee on Disputes has no authority to give any direction or remand the case to either the adjudicating authority or appellate authority for deciding the issue afresh. After discussing guidelines issued by the Board vide its Circular No.269/103/96-CX dated 15.11.1996, on the role &jurisdiction of Committee on Disputes in resolving the issue between a Public Sector Undertaking and Government Department, and the observation of the Honble Supreme Court in this regard, the ld. Commissioner (Appeals) had concluded at Para 17 of his order as follows :
17. I also do not find from any legal provision of statute or any judicial pronouncements supporting the view that COD can remand the case back to the adjudicating authority/appellate authority..
7. On a careful consideration of the aforesaid reasons/conclusions of the ld. Commissioner (Appeals), I do not find any infirmity in the same. In my opinion also, the second appeal cannot lie under Section 35A of CEA,1944 against the same Order-in-Original which has been challenged earlier before the Commissioner(Appeal) by filing a proper Appeal in the prescribed format in Form EA-1 under Section 35A on various grounds; and after due consideration of all groundsraised in the said Order-in-Original and observing principles of natural justice, in exercising its Appellate jurisdiction, the ld. Commissioner (Appeals) has disposed of the appeal on merit. I agree with the view of the ld. Commissioner (Appeals) that in absence of any statutory provision, the direction of the Committee on Disputes (constituted for resolving the dispute between Public Sector Undertaking and Government Department, in carrying out the litigation before Tribunal and other higher judicial fora), to the Appellant to approach the Commissioner(Appeals) for resolution of dispute, which resulted into filing the second appeal under Section 35A of the Central Excise Act, 1944, against the same Order-in-Original, is not binding on him being devoid of any authority under the law.Besides, theLd. Commissioner has rightly held that the second appeal had been filed by the Appellant beyond the statutory and condonable limit of 90 days(60+30) and hence not maintainable as the Commissioner(Appeals) has not been vested with the power to condone delay in filing the Appeal beyond thirty days in addition to the statutory period of sixty days, in view of the principle of law settled by the Honble Supreme Court in Singh Enterprises case ( supra). Since the second Appeal before the Ld Commissioner(Appeal) is held to be not maintainable, I do not see any justification to enter into the merit of the case. In the result, the order of the ld. Commissioner (Appeals) is upheld and the appeal filed by the Appellant is hereby rejected.
( Pronounced in the open Court) Sd/ (DR. D.M.MISRA) MEMBER (JUDICIAL) mm 2 Ex. Appeal No.677/11