Custom, Excise & Service Tax Tribunal
M/S. Midex Global Pvt. Ltd vs C.C.E. Indore on 2 June, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Service Tax Appeal No. ST/945/2009-[DB]
[Arising out of Order-In-Appeal No. IND-I/198/2009,
F. No. 58-ST/Ind/Appl-I/2009/922 dated: 31.08.2009/10.09.2009 passed by Commr. (Appeals) Indore]
For approval and signature:
Hon'ble Mr. S.K. Mohanty, Member (Judicial)
Honble Mr. R. K. Singh, 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 should 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 Departmental authorities?
M/s. Midex Global Pvt. Ltd. ...Appellant
Vs.
C.C.E. Indore Respondent
Appearance:
Ms. Priyanka Goel (Advocate) for the Appellant Mrs. Suchitra Shrma, (DR) appeared for the Respondent CORAM:
Hon'ble Mr. S.K. Mohanty, Member (Judicial) Honble Mr. R. K. Singh, Member (Technical) Date of Hearing/ Decision.02.06.2016 Final Order No. 52582 /2016 Per S.K. Mohanty:
This appeal is directed against the impugned order dated 31.08.2009 passed by the Commissioner (Appeals), Customs, Central Excise and Service Tax, Indore. The preliminary objection of the appellant in this appeal is that the review order dated 06.01.2009 issued by the jurisdictional Commissioner in exercise of the powers conferred under sub-section (2) of Section 35E of Central Excise Act, 1944 in directed the Assistant Commissioner to file the appeal before the Commissioner (Appeals) in terms of sub-section (4) of Section 35E of the Act is not legal and proper inasmuch as the issue involved in this case relates to service tax demand, for which the provisions of Central Excise Act contained in Section 35E will have no application.
2. Heard the Ld. Counsel for both the sides and perused the records.
3. We find that the Jurisdictional Assistant Commissioner of Central Excise vide order-in-original dated 24.10.2008 had sanctioned the refund claim amount of Rs. 13,70,330/- in favour of the appellant. The said order was reviewed by the Jurisdictional Commissioner and vide order dated 06.01.2009, he has directed the Assistant Commissioner to file the appeal before the Commissioner (Appeals) of Central Excise in terms of sub-section (4) of Section 35E of the Central Excise Act, 1944.
4. Section 83 of the Finance Act, 1944 provides for applicability of certain provisions under the Central Excise Act, 1944 for the purpose of the Finance Act, 1994. 35E of the Central Excise Act, 1944 is not finding a place in Section 83 of the Finance Act, 1984. Thus, order dated 06.01.2009 passed by the Jurisdictional Commissioner in terms of Section 35E of the Central Excise Act, in directing the Assistant Commissioner to file the appeal before Commissioner (Appeals) concerning the service tax issue is not in conformity with the statutory mandates.
5. Pursuant to the direction dated 06.01.2009 of the Jurisdictional Commissioner, the Assistant Commissioner has filed the appeal before the Commissioner (Appeals) on 12.02.2009. Section 84 of the Finance Act, 1994 at the relevant time provides for revision of orders by the Commissioner of Central Excise and nowhere there is any mention about filing of appeal before the Commissioner (Appeals) against the order passed by the officers subordinate to the Commissioner. The said provision of filing appeal was incorporated in Section 85 w.e.f. 19.08.2009. In the present case, since the appeal was preferred by the Assistant Commissioner prior to the date of substitution of the clause in Section 84 of the Act w.e.f. 19.08.2009 for filing the appeal, we are of the view that the appeal filed before the Commissioner (Appeals) is not maintainable.
6. Since filing of appeal and disposal of the same by the Commissioner (Appeals) is not in conformity with the statutory provisions, we accept the preliminary submission of the appellant that the order passed by Commissioner (Appeals) is liable to be set aside. We, therefore, allow the appeal of the appellant holding that proceedings initiated by the department for filing appeal before the Commissioner (Appeals) and disposal of the same vide the impugned order dated 31.08.2009 is not in conformity with the statutory provisions. Therefore, we set aside the impugned order and allow the appeal in favour of the appellant with consequential relief, if any, as per law.
(Dictated and pronounced in the open court)
(R. K. Singh) (S. K. Mohanty)
Member(Technical) Member (Judicial)
Neha
3 | Page
ST/945/2009-[DB]