By TIOL News Service

MUMBAI, FEB 05, 2015: THESE are Revenue appeals.

The fact of the case are that the respondent filed 4 refund claims totaling an amount of Rs.72,674/- in respect of SAD in terms of Notification 102/2007-Cus dated 14/07/2007.

All the claims were sanctioned by the AC, C.EX vide separate orders.

Against these orders, the Revenue filed one common appeal before the Commissioner (A) who rejected the same on 16/11/2011 by observing thus -

8. In view of the above, I am also of the view that the appellant should have filed four separate appeals against, the said four order in original before the Appellate Authorities for determination of such points arising out of the decision or order as specified by the Commissioner of Central Excise in his order dated 5th May, 2011 which the appellant has failed. Therefore, the common appeal filed under the single appeal is contrary to the provisions of law and cannot be decided and would not be maintainable under the provisions of the sub-section (4) of Section 35 E of the Central Excise Act 1944 and as such the appeal filed by the appellant is liable to be rejected.

9. The appellant are thus required & directed to file four separate appeals with respect to four impugned Orders-in-Original to be appealed against.

10. In view of the above, the common appeal filed in respect of the four order-in-original Nos. R/1302 to 1305 all dated 30/12/2014 is rejected.

Consequently, Revenue filed four (4) separate appeals before the Commissioner (Appeals) and at the same time filed an appeal before the Tribunal against the same Order-in-Appeal.

However, the Tribunal dismissed the appeal of the Revenue as infructuous on the ground that the separate appeals were pending before the Commissioner (Appeals).

Vide a common order dated 30/4/2012 the Revenue's four appeals were dismissed by the same Commissioner (Appeals) as not maintainable.

These are the findings given -

“From the above, it is clear that Section 35 ibid provides for filling appeal to the Commissioner, Central Excise (Appeals), against any decision or order passed under this Act by a Central Excise officer lower in rank than a Commissioner of Central Excise by virtue of application of Section 35(E)3 of the Central Excise Act, 1944. Since the Order-in-Appeal No. YDB /256/ThI/2011 dated 16/11/2011 is an order which is passed by an officer under Section 35A(3) of the Act, who is not lower in the rank than the Commissioner(s) of Central Excise, being the one passed by the Commissioner of Central Excise (Appeals) and this order under section 35A(3) can't be subjected to a review under section 35E(2) by the Commissioner(s) of Central Excise as it is clearly outside the purview in as far as the same relates to the order passed by an authority who is not subordinate to the Commissioner of Central Excise. As these appeals have been filed against the order of the Commissioner (Appeals), the same cannot be re-entertained by the Commissioner (Appeals), as there is no power of review or modification, vested with the Commissioner of Central Excise (Appeals) to do so against his own order. Therefore, these appeals are not maintainable and thus liable for rejection.

It is against this order that the Revenue is before the CESTAT.

The AR narrated the facts and submitted that the four appeals were filed as per the direction of the Commissioner (Appeals) given in the Order-in-Appeal dated 16/11/2011 and, therefore, the Commissioner (Appeals) should not have rejected the appeals on the ground that appeal cannot be filed against order of the Commissioner (Appeals) itself. It is further submitted that since the Commissioner (Appeals) himself has mentioned in the impugned Order-in-Appeal that these appeals are against four Orders-in-Original dated 30/12/2010, therefore, entire findings presuming that appeals were filed against Order-in-Appeal is wrong on the fact of the records itself. The AR requested that the matter be remanded.

The Respondent submitted that the total refund amount involved in the present case is Rs. 72,764/- and in view of Board instruction F. NO. 390/Misc./163/2010-JC dated 17/08/2011 , the monetary limit for filing appeals before Tribunal is Rs. 5 lakhs and, therefore, appeals are not maintainable; as the four separate appeals were filed after stipulated time limit of 90 days the appeals were not maintainable since time barred before the Commissioner (Appeals).

The Bench observed -

"5. The Revenue had filed four consolidated appeals before the Commissioner (Appeal) against four separate Orders-in-Original dated 30/12/2010. The Commissioner (Appeals) in one hand directed the Revenue to file four separate appeals and on the other hand straightaway dismissed the appeals vide Order-in-Appeal NO. Appeal No. YDB(256)Th.I/2011 dated 16/11/2011. Pursuance to the said direction the Revenue has filed four separate appeals. These four appeals were dismissed on the ground that there is no power vested to the Commissioner (Appeals) to review his own order considering that the Revenue has filed four separate appeals against Orders-in-Original and not against order of the Commissioner (Appeals). The Revenue has followed the direction of the Commissioner (Appeals) and filed four appeals. It clearly appears from the impugned order that four appeals before the Commissioner (Appeals) were filed against Orders-in-Original only and not against the Commissioner (Appeals) order. Therefore the Commissioner (Appeals) gravely erred in giving the said findings which is against the fact appearing on record. As per the submission of the respondent I am of the view that monetary limit will apply only in case the order was passed on merit. In the present case the impugned order was not passed on merit. Therefore the appeals are maintainable. As regard time bar, the Revenue in the first round had filed consolidated appeal against four Orders-in-Original, all the four orders-in-original were in challenged. It is only technical requirement to file four numbers of appeals. Therefore in these facts and circumstances, it can not be said that there is delay in filing in the appeal."

Holding that the Commissioner (Appeals) should have passed the order on merit in respect of four appeals instead of dismissing the same on the ground which is not flowing from the facts of the case, the impugned order was set aside and the matter remanded.

In passing: Such a colossal waste of time, energy, manpower…all due to a lackadaisical approach by the Commissioner(A)…NACEN, where art thou?

(See 2015-TIOL-261-CESTAT-MUM)