By TIOL News Service

MUMBAI, MAR 16, 2017: THE matter is listed before the CESTAT to decide the maintainability of the appeal.

The fact is that the goods were cleared under bond and the bond period had expired. On pointing out by the department, the duty was paid on the export clearances, thereafter, the refund was claimed. The appellant contends that in view of the above facts, the matter is a case of refund of duty and not a rebate claim.

The AR submitted that the goods were cleared though under bond but at the time of clearance there was no valid bond. Therefore, the export clearances were to be made on payment of duty under claim for rebate. Therefore, whatever duty was paid, the same is refundable under the rebate provisions as provided under Rule 18 of the CER, 2002. Inasmuch as since the case involving rebate of duty is excluded from appeal remedy before Tribunal as per provisions of Section 35B clause (b) of CEA, 1944, the present appeal is not maintainable.

After considering the submissions, the Bench observed –

"4. …We find that the goods were cleared though mentioning under bond but since the bond was expired, no bond was available, the goods has to be cleared on payment of duty under claim for rebate. Therefore, whatever duty was paid by the appellant and the same is refundable under rebate provisions under rule 18 of the Central Excise Rules, 2002. Therefore, the present case is for rebate of duty paid on the export clearance, as provided under Section 35B (1)(b) of Central Excise Act, 1944, the case involving rebate of duty in respect of export clearance are excluded. Accordingly, the appeal in such case is not maintainable before this Tribunal whereas the remedy of revision application before the Joint Secretary, Revisionary Authority to Government of India is available to the assessee. It is also noticed that the appellant had already filed revision application before the appropriate authority. As per our above discussion, the appeal is not maintainable…"

In fine, the appeal was dismissed as non-maintainable.

(See 2017-TIOL-842-CESTAT-MUM)