Custom, Excise & Service Tax Tribunal
4. Whether Order Is To Be Circulated To ... vs Cce, Jaipur on 9 January, 2009
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. IV Excise Appeal No. 1408 of 2007 (SM) [Arising out of the Order-in-Appeal No. 30/GRM/CE/JPR-I/ 2007 dated 23/02/2007 passed by The Commissioner (Appeals), Central Excise, Jaipur. ] For Approval and signature : Honble Shri Rakesh Kumar, Member (Technical) 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 would be released under Rule 27 of : the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3. Whether their Lordships wish to see the fair : copy of the order? 4. Whether order is to be circulated to the : Department Authorities? M/s Kaizen Organics Pvt. Ltd. Appellant Versus CCE, Jaipur Respondent
Appearance Shri Atul Gupta, Company Secretary for the appellant.
Shri S. Gautam, Authorized Representative (DR) for the Respondent.
CORAM : Honble Shri Rakesh Kumar, Member (Technical) DATE OF HEARING : 09/01/2009.
Order No. ________________ Dated : ,,,,,,,,,,,_____________ Per. Rakesh Kumar :-
The Appellant are engaged in the manufacture of Menthol Powder, Menthol Crystal, D.M.O. and Menthol Oil falling under Heading 29061100, 30039021 and 33012590 of the Central Excise Tariff. They had cleared six consignments for export of Menthol Crystal and proof of export in respect of these six consignments was accepted by the Department. However, subsequently the Appellant vide letter dated 26/10/06 of the Assistant Commissioner were informed that the acceptance of the proof of export has been withdrawn as it was found that the description of the goods as mentioned in ARG 1 and Shipping Bill and Bill of heading does not tally. Against Assistant Commissioners letter dated 26/10/06 withdrawing the acceptance of the proof of export, the Appellant filed an appeal before the CCE (Appeals), Jaipur and the Commissioner (Appeals), Jaipur vide the impugned order-in-appeal dated 13/2/07 has rejected the appeal on the ground that Assistant Commissioners letter dated 26/10/06 is not adjudication order, therefore, the appeal is not maintainable. It is against this that the present appeal has been filed.
2. Shri Atul Gupta, Company Secretary and Shri Bipin Garg, Advocate, the learned Counsels on behalf of the Appellant pleaded that the Assistant Commissioners letter withdrawing the earlier acceptance of the proof of export has to be treated as an appealable decision and in this regard he cited the Tribunals order in the case of Bhagwati Gases Ltd. vs. CCE, Jaipur I reported in 2008 (85) R.L.T. 153 (CESTAT Del.). They also pleaded that the Tribunal is competent to decide this appeal as the impugned order relates to maintainability of the appeal against the Assistant Commissioners letter and does not relate to the export of goods outside India without payment of duty.
3. The learned Departmental Representative, pleaded that the basic dispute in this case is the acceptability of the proof of export submitted by the Appellant and since the order-in-appeal in this regard has been passed by the Commissioner (Appeals), in terms of the 1st proviso to Section 35B (1) of the Central Excise Act, the appeal against the impugned order will not lie before the Tribunal.
4. I have carefully considered the submissions from both the sides. I find merit in the learned Departmental Representatives contentions that the basic dispute in this case is as to whether or not the proof of export submitted by the Appellant was acceptable or not. Since, in this regard, the order has been passed by the Commissioner (Appeals), in view of the Provisions of 1st proviso to Section 35 B (1), the appeal against this order does not line before this Tribunal. The appeal is, therefore, dismissed. The Appellant are free to file revision application before the Joint Secretary (RA).
(Dictated and pronounced in open court) (Rakesh Kumar) Member (Technical) PK