ST - Rebate claim - appeal against Order passed by Commissioner(A) lies before CESTAT - Tribunal has clearly missed and omitted from consideration subsection (2A) of section 86 of FA, 1994 - Revenue appeal allowed: High Court
By TIOL News Service
MUMBAI, MAR 11, 2015: BRIEF facts: The Respondent Assessee holds a Service Tax registration under the category of "Manpower recruitment and supply agency".
A claim for rebate of Rs.10,75,254/- on the services exported out of India was lodged and the same was rejected by the AC, Service Tax on the ground that the assessee had not submitted complete information/documents in support of its claim.
The Commissioner(A) allowed the appeal of the assessee.
Against the said O-in-A, the Revenue had filed an appeal before the CESTAT.
The Bench had while dismissing the appeal as being non-maintainable observed -
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"3. We find that as per the provisions of Section 86 of the Finance Act, 1994 read with Section 35B of the Central Excise Act, 1944 the CESTAT has to exercise the same powers and follow the same procedures as it exercise for hearing of the appeals under the Central Excise Act, 1944. As per the provisions of Section 35B of the Central Excise Act, 1944, 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 passed by the Commissioner (Appeals) in a case of 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.
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4. As the Tribunal has the same powers as provided under the Central Excise Act, 1944 regarding hearing of the appeals under the Finance Act, 1944 and in respect of rebate claim, no appeal lies to the Tribunal against the order passed by the Commissioner (Appeals)."
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We had reported this order as 2013-TIOL-809-CESTAT-MUM.
Against this order, the Revenue had filed an appeal before the Bombay High Court and the same was admitted on the following substantial question of law:
"Whether the CESTAT is right in law in holding that no appeal lies to it in respect of rebate claims made under the Finance Act, 1994?"
The High Court after mentioning the facts and extracting the provisions of section 83 narrated the significance of sections 83A [power of adjudication], 84 [Appeals to Commissioner of Central Excise (Appeals)], 85 [substantive right of Appeal and manner of filing appeal] and in the matter of section 86 of the Finance Act, 1994 observed -
"12.…Similarly, by an amendment brought in and by substitution of subsection (2A) w.e.f. 11th May, 2007 and now providing for a power in the Committee of Commissioners if it objects to the order passed by the Commissioner of Central Excise (Appeals) under section 85 to direct any Central Excise Officer to file Appeal on his behalf to the Appellate Tribunal against the order. The proviso thereto deals with the cases of difference of opinion between the Committee of Commissioners. We are not concerned with such a situation.
13. Then, various subsections of section 86 would enable the Appellate Tribunal to deal with the Appeal and what the Tribunal has noted in this case is only subsection (7) of section 86. That is enabling it to apply the same provisions of the Central Excise Act, 1944 while dealing with the Appeals under section 86. Thus, the same powers and the same procedure as is provided in Central Excise Act, 1944 while dealing with Appeals may be followed by the Tribunal. The Tribunal, thus, has the same powers and can follow identical procedure as is found in Central Excise Act, 1944. To our mind, this was not the provision which could have enabled the Tribunal in this case to rely on the issue of maintainability or competency of the Appeal.
14. The Tribunal has clearly missed and omitted from consideration subsection (2A) of section 86. In this case, it is the Committee of Commissioners which objected to the order passed by the Commissioner of Central Excise (Appeals) and directed the Central Excise Officer to appeal on its behalf to the Appellate Tribunal against that order. This Appeal was clearly maintainable and should have been entertained and decided on merits. The subject Appeal therefore could not have been dismissed for want of jurisdiction."
In fine, the High Court held that the appeal was competent and maintainable.
The impugned order was set aside and the appeal of the Revenue was restored to the Tribunal's file for being disposed of on merits.
Incidentally, the High Court while observing that its view is supported by the judgement of the Delhi High Court in the case of Glyph International Ltd. - 2014-TIOL-560-HC-DEL-ST concurred with the same.
In passing: The CESTAT in its order dated 30.04.2013 had also observed - "…we find that as per the preamble of the Order-in-Appeal, the appeal lies to the Joint Secretary to the Government of India."
(See 2015-TIOL-577-HC-MUM-ST)
