Custom, Excise & Service Tax Tribunal
M/S Aditya Birla Nuvo Ltd vs Cce, C & St, Visakhapatnam-I on 26 October, 2016
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL REGIONAL BENCH AT HYDERABAD Bench SMB Court I Appeal No. E/21835/2014 (Arising out of Order-in-Appeal No. 06/2014 (V-I) CE dated 04.03.2014 passed by CCE, C & ST (Appeals), Visakhapatnam) For approval and signature: Honble Ms. Sulekha Beevi, C.S., Member (Judicial) 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 their Lordship wish to see the fair copy of the Order? 4. Whether Order is to be circulated to the Departmental authorities? M/s Aditya Birla Nuvo Ltd., ..Appellant(s) Vs. CCE, C & ST, Visakhapatnam-i ..Respondent(s)
Appearance Shri. G. Prahalad Advocate for the Appellant Shri. P.S. Reddy Assistant Commissioner (AR) for the Respondent Coram:
Honble Ms. Sulekha Beevi, C.S., Member (Judicial) Date of hearing: 26/10/2016 Date of decision: 26/10/2016 FINAL ORDER No._______________________ [Order per: Sulekha Beevi, C.S.]
1. The present appeal is filed by the appellant against the order passed by the Commissioner (Appeals). The appellant is aggrieved that Commissioner (Appeals) did not allow interest upon the rebate granted. The Ld. AR Shri. P.S. Reddy argued that as per proviso to Section 35B of the Central Excise Act, 1944 the Tribunal cannot entertain an appeal from any order which relates to an order of rebate.
2. Refuting above contention the Ld. Counsel G. Prahalad appearing for the appellant submitted that the issue does not pertain to grant of rebate and is confined to the claim of interest that was not allowed while granting the rebate.
3. On bare perusal of the proviso to Section 35B of the Central Excise Act, 1944 I have to agree with the submissions put forward by the Ld. AR appearing on behalf of the department. Relevant portion of Section 35B is under:
Section 35B in the Central Excise Act, 1944 35B. Appeals to the Appellate Tribunal. (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order
(a) a decision or order passed by the Commissioner of Central Excise as an adjudicating authority;
(b) an order passed by the Commissioner (Appeals) under section 35A;
(c) an order passed by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) (hereafter in this Chapter referred to as the Board) or the [Appellate Commissioner of Central Excise] under section 35, as it stood immediately before the appointed day;
(d) an order passed by the Board or the Commissioner of Central Excise, either before or after the appointed day, under section 35A, as it stood immediately before that day:
Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such order relates to,
(a) a case of loss of goods, where the loss occurs in transit from a factory to a warehouse or to another factory, or from one warehouse to another, or during the course of processing of the goods in a warehouse or in storage, whether in a factory or in a warehouse;
(b) a rebate of duty of excise on goods, exported to any country or territory outside India or on excisable materials used in the manufacture of goods which are exported to any country or territory outside India;
(c) goods exported outside India (except to Nepal or Bhutan) without payment of duty; [(d) credit of any duty allowed to be utilised towards payment of excise duty on final products under the provisions of this Act or the rules made thereunder and such order is passed by the Commissioner (Appeals) on or after the date appointed under section 109 of the Finance (No. 2) Act, 1998].
From the above noticed provision, it is clear that the Tribunal does not have jurisdiction to decide any appeal in respect of an order passed by the Commissioner (Appeals) if the order relates to rebate of duty of Excise. Even though the issue is only with regard interest on rebate, interest being a compensation for delay or denial of legitmate amount, I am of the view that it is integrally connected to the issue of rebate. From the above, I hold that the appeal is not maintainable for the reason that Tribunal has no jurisdiction to decide the appeal. The appellant however can persue the remedy before appropriate forum as they have been contesting before a wrong forum. The appeal is dismissed.
(Dictated & pronounced in open court) SULEKHA BEEVI C.S. MEMBER(JUDICIAL) Lakshmi.
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