2023 (1) TMI 875 - AT - Central Excise

Maintainability 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.

Summary

Issues:
1. Maintainability of the impugned order passed by the Commissioner (Appeals) under Section 84 of the Finance Act 1994 instead of Section 35A of the Central Excise Act, 1944.

Analysis:
The appeal in question challenged an order dated 29.11.2018 by the Commissioner (Appeals) regarding the eligibility of a refund amounting to Rs.10,82,594/- for the appellant. The Commissioner held that the appellant was only entitled to a refund of Rs.81,195/- as a pre-deposit made during the appeal process. The appellant contended that the order was not maintainable as it was passed under the wrong statutory provision. The issue revolved around the refund of Cenvat Credit by the appellant as a manufacturer of excisable goods. The appellant argued that the appeal should have been filed under Section 35A of the Central Excise Act, 1944, instead of Section 84 of the Finance Act, 1994. The Tribunal cited previous cases where appeals filed under the wrong statute were rejected, emphasizing the importance of filing appeals under the correct statutory provisions.

The Authorized Representative for Revenue defended the impugned order, claiming that the defect in passing the order under the wrong statute was curable and should not invalidate the order. They cited various judgments to support their argument, but the Tribunal found these cases to be distinguishable from the present situation. The Tribunal noted that the issue of jurisdiction in filing and disposing of appeals under different statutes was crucial. Since there was no indication that the higher courts had overruled the Tribunal's decision in similar cases, the Tribunal concluded that the impugned order was not sustainable on the grounds of maintainability. Therefore, the appeal was allowed on the limited ground of jurisdiction only.

In conclusion, the Tribunal held that the impugned order passed by the Commissioner (Appeals) under the wrong statutory provision was not maintainable. The appeal was allowed based on the jurisdictional issue raised by the appellant, emphasizing the importance of filing appeals under the correct statutory provisions for the subject matter at hand.