TMI Blog2012 (10) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... diction of the appellate Tribunal is expressly stated in the Statute - Tribunal was in error in entertaining the said appeal - order passed by the Tribunal is illegal, contrary to law and cannot be sustained - C.E.A. No. 64 of 2010 - - - Dated:- 12-4-2011 - N. Kumar and Ravi Malimath, JJ. REPRESENTED BY : Shri N.R. Bhaskar, Advocate, for the Appellant. [Judgment per : N. Kumar, J.]. The revenue has preferred this appeal challenging the order passed by the Tribunal under Section 35B holding that the assessee is entitled to the benefit of rebate. 2. Section 35B deals with the appeals to appellate Tribunal which reads as under :- 35B. Appeals to the Appellate Tribunal. - (1) Any person aggrieved by any of the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout payment of duty; (d) credit of any duty allowed to be utilised towards payment of excise duty on final products under the provisions of this Act or the rules made thereunder and such order is passed by the Commissioner (Appeals) on or after the date appointed under Section 109 of the Finance (No. 2) Act, 1998 :] PROVIDED FURTHER that the Appellate Tribunal may, in its discretion refuse to admit an appeal in respect of an order referred to in cl. (b) or cl. (c) or cl. (d) where - (i) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lf (hereafter in this Chapter referred to as the authorised officer) to appeal [on its behalf] to the Appellate Tribunal against such order. (3) Every appeal under this section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the [Commissioner of Central Excise], or, as the case may be, the other party preferring the appeal. (4) On receipt of notice that an appeal has been preferred under this section, the party against whom the appeal has been preferred may, notwithstanding that he may not have appealed against such order or any part thereof, file, within forty-five days of the receipt of the notice, a memorandum of cross-objections verified in the prescribed manner ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... memorandum of cross-objections referred to in sub-section (4). (7) Every application made before the Appellate Tribunal, - (a) in an appeal for grant of stay or for rectification of mistake or for any other purpose; or (b) for restoration of an appeal or an application, shall be accompanied by a fee of five hundred rupees : PROVIDED that no such fee shall be payable in the case of an application filed by or on behalf of the Commissioner of Central Excise under this sub-section.] A reading of the aforesaid provision makes it very clear that the proviso to Section 35 categorically states that no appeal shall lie to the appellate Tribunal and the appellate Tribunal shall not have jurisdiction to decide any appeal in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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