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2013 (1) TMI 611 - CESTAT NEW DELHICondoning the delay – Classification – Rebate claim - Rule 18 of the Central Excise Rules, 2002 - Chapter sub heading 73269099 - Notification No.10/03-CE, dated 01.03.03 - Section 5A (1A) of Central Excise Act - Ice Bucket and waste Bucket - Delay in filing the appeal – The appeal filed against Order of Commissioner (A) before Govt. of India as revision application on issue of rebate claim – After the decision of Jt Secretary (RA) appeal filed before Tribunal for consideration of the classification issue Held that:- Where the main issue is export rebate covered by first proviso to Section 35B(1) and if for deciding the issue relating to export rebate, some other issues have also to be decided, the Tribunal would not have jurisdiction and that order of Commissioner (Appeals) can be challenged only before the Jt. Secretary (RA) by filing a revision application. Where the Commissioner (Appeals) in the same order decides two issues one issue relating to export rebate and other issue relating to classification/valuation or Cenvat credit and the two issues are totally independent issues, the order of the Commissioner (Appeals) can be treated as two orders-one in respect of export rebate and the other in respect of classification or valuation or Cenvat credit and only in such a case different portions of the order can be challenged before different authorities. The eligibility of the rebate claim depends on the classification of goods. The same impugned order passed by the Commissioner(A) cannot be subject matter of two different appeals before two different appellant forums. Once the appeal filed there against before Govt. of India as revision application stands rejected by the Joint Secretary on merits, the impugned order cannot be challenged for the second time before Tribunal for consideration of the classification issue. Since the Commissioner (Appeals)'s order had been challenged before the right forum by filing revision application before Jt. Secretary (RA), the facts and circumstances of the case, there is no justification for condoning the delay of 948 days in filing of the appeal, Moreover, when the Jt. Secretary (RA) has rejected the Department's revision application against the Commissioner (Appeals) order and as such the order of the Commissioner (Appeals) stands merged with the order of Jt. Secretary (RA), there is no question of even filing appeal against the order of the Commissioner (Appeals) before the Tribunal. In favour of assessee
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