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2023 (1) TMI 875 - AT - Central ExciseMaintainability of appeal - Maintainability of appeal - Jurisdiction under service tax vs central excise - Appropriate authority to file claim - Commissioner (Appeals) under section 35A of the Central Excise Act, 1944 or Section 85 of the Finance Act, 1994 in Form S.T.4. - recovery of the inadmissible Cenvat Credit under Rule 14 of the Cenvat Credit Rules, 2004 read with the provisions of Section 11A(4) of the Central Excise Act, 1944 - HELD THAT:- The relevant provisions contained in Section 35A ibid should be applicable for filing the appeal before the Commissioner (Appeals). However, in this case, Revenue has filed the appeal under Section 84 of the Finance Act, 1994 and the said appeal was entertained and disposed of by the learned Commissioner (Appeals) under such statutory provisions. Since, the impugned order was passed under a statute which does not deal with the subject issue, the submissions made by the learned Consultant for the appellant merit consideration for the purpose of maintainability of such appeals by the Commissioner (Appeals). The Tribunal in the case COMMISSIONER OF C. EXCISE & CUS., VAPI VERSUS GUARDIAN PLASTICOTE LTD. [2010 (6) TMI 472 - CESTAT, AHMEDABAD] has held that appeal filed under Service Tax statute in respect of the Central Excise matter is not maintainable and accordingly, rejected the appeal filed by the Commissioner of Central Excise. Since, the Co-ordinate Bench of this Tribunal has taken a view that appeal under the ground of jurisdiction is an important aspect for consideration, contrary stand cannot be taken in deciding the present issue differently. Further, it is not the case of Revenue that against the order passed by the Tribunal in the case of Guardian Plasticote Ltd., the Department has filed any appeal in the higher forum or that order of the Tribunal has been set aside and overruled by the higher courts. The impugned order is not sustainable on the ground of maintainability - appeal filed by the appellant is allowed on limited ground of jurisdiction only.
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