9911796707
TMI Blog2014 (3) TMI 918X X X X Extracts X X X X X X X X Extracts X X X X ..... involved (Rs.) Subject matter of appeal Period of dispute 1 117-118/CCEX/2007 dated 09/01/2008 88,22,282/- Demand towards cenvat credit wrongly taken Jan 2006 to Aug 2007 2 P-VI/Refund/95/CEX /2008 dated 31/03/2008 1,80,045/- Rejection of refund of cenvat credit March 2005 3 P-VI/Refund/94/CEX /2008 dated 31/03/2008 79,468/- Rejection of rebate of duty paid on supplies made to SEZ units July 2006 4 R-312/CEX/2008 dated 25/07/2008 2,66,704/- Rejection of rebate of duty paid on supplies made to SEZ units November 2006 5 02/CX/07 dated 23/05/2007 39,12,785/- Demand towards cenvat credit wrongly taken 2-3-2005 to 31-12-2005 6 P-VI/Rebate/184/CX/2008 dated 08/05/2008 4,87,063/- Rejection of rebate of duty paid on supplies made to SEZ units April & May,2007 7 P-VI/Rebate/03/CEX/2008 dated 31/03/2008 84,658/- Rejection of rebate of duty paid on supplies made to SEZ units July 2006 2.2 In the order No. A/491-497/11/EB/C-1 dated 26-5-2011, this Tribunal framed the issue for consideration in all the 7 appeals, in para 6 thereof, as follows:- "6. We have considered the detai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onfirmed government dues of Rs. 21,47,179/- pending from the appellant. 2.5 Revenue was aggrieved of the said order sanctioning refund/rebate and filed a appeal before the lower appellate authority on the following grounds:- "On going through the CESTAT order, it is seen that "consequential relief" cannot be construed to mean that refund/rebate claims are admissible. It only means that the Cenvat credit taken by the claimant need not be reversed as per the demands issued to them. Further, as per Section 35EE of the Central Excise Act, 1944, the matters relating to rebate of duty of excise on goods exported to any country or territory outside India (in the present case SEZ) are not dealt by CESTAT but by the Revision Application Unit, GOI, Dept. of Revenue, New Delhi. The claimant should have filed Revision Application as per section 35EE of the Central Excise Act, 1944 which they failed to do. Thus "consequential relief" needs to be interpreted in terms of the powers vested with CESTAT." 2.6 The lower appellate authority vide Order-in-Appeal No. P-III/RS/150/2012 dated 02/05/2012 allowed the appeal filed by the Revenue obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority, the grounds urged by the appellant can be summarized as follows:- (1) The central excise department at Pune is wholly responsible for the financial condition of the appellant firm; (2) The Dy. Commissioner of Central Excise, Pune III has failed to follow the orders of the CESTAT; (3) The Commissioner of Central Excise, Pune has grossly violated the law of the land by directing the Dy. Commissioner to file departmental appeal; (4) The Commissioner (Appeals) has no judicial power to hear the appeal in respect of an order passed by the Tribunal in favour of the appellant. 3.1 The ld. Counsel for the appellant submitted that though the order dated 26/05/2011 of the Tribunal only dealt with the question of reversibility of cenvat credit in a situation when duty liability had been discharged wrongly, but had allowed the all the appeals with consequential relief. That is, even those appeals, where the subject matter pertained to the refund of duty paid or rebate of duty paid in respect of supplies made to SEZ units, were allowed by the Tribunal wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inality and therefore, the issue cannot re-opened by the lower authorities. Accordingly he pleads for implementation of the Tribunal's order dated 26/05/2011. 4. The ld. Addl. Commissioner (AR) appearing for the Revenue submits that from the order of the Tribunal it is clear that the Tribunal considered only the question of reversibility of Cenvat credit in a case where duty was paid wrongly and held that in as much as the duty payment has been accepted, that would amount to reversal of credit. Accordingly he pleads that the findings of the lower appellate authority is correct in law and merits to be sustained. 5. We have carefully considered the rival submissions. 5.1 We observe that both the parties, the appellant as well as Revenue has not dealt with the issue required to be considered by this Tribunal in the Miscellaneous Application filed by the Revenue. The relief sought in the Misc. Application is implementation of the order of this Tribunal dated 26/05/2011. The relief granted by the Tribunal, whether rightly or wrongly, was allowed by the jurisdictional Dy. Commissioner vide order No. R-157/Refund/PVI/CEX/2011-12 dated 22/11/2011 wherein he sanctioned a rebate/refun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is, in reality, valid. It follows that an order maybe void for one purpose and valid for another, and that it may be void against one person but valid against another." It will be clear from these principles, the part aggrieved by the invalidity of the order has to be approach the Court for relief of declaration that the order against him is inoperative and not binding upon him. He must approach the Court within the prescribed period of limitation. It the statutory time limit expires the Court cannot give the declaration sought for." (emphasis added) 6. Following the ratio laid down as above by the hon'ble Apex Court, we have to hold that the present Miscellaneous application is not sustainable in law and accordingly, we dismiss the same. (Operative Part Pronounced in Court on --/10/2013) Per: Anil Choudhary: 7. I have gone through the order passed by the Ld. brother P.R.Chandrasekharan, Member (Technical) but I humbly disagree with the view taken. 8. Without repeating the facts in details, it is important to note few observation(s) in earlier order(s). 9. I find that CESTAT in its earlier order in the case being E/1299/08 and E/715/09 order dated 23.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 2002 provides for admissibility of rebate. Further vide circular no. 29/06-Cus dated 27.12.2006, it was clarified that rebate is admissible when supply are made from DTA to SEZ. 9.9 In para 3 (M) it was noticed that in view of provisions of para 1.2 & para 1.3 (part VI of chapter - 7) and paras 1.2 & 1.3 of (part V of chapter - 8) of CBEC Excise manual, wherein it was clarified that Rule 18 & 19 applies to excisable goods as well as non-excisable goods. In other words even where process does not amount to manufacture, the petitioner would be eligible for the benefits under Notification issued under Rules 18 & 19 of Central Excise rule. The Tribunal in its earlier order dated 23.06.2011 had taken notice of all grounds and after considering all the aspects allowed the appeal with consequential relief as noticed in para 2.2 above. 10. Thereafter the order dated 23.06.2011 of the Tribunal was challenged in Appeal No. E/29/12 by the Revenue before the Hon'ble High Court. The Hon'ble Bombay High Court after taking notice of facts & law was pleased to find no merits in the contention of the Revenue and the order of the Tribunal was upheld by its order dated 26.12.2012. 11. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the case on behalf of the applicant. Learned Shri Acharya contended that in the prayers in their appeals relating to rebate claims one of the prayer was to "To direct the Deputy Commissioner of Central Excise to pay the rebate to the appellants" Tribunal's order dated 23.6.2011 specifically stated that the appeals are allowed with consequential relief. Thus, they are entitled to rebate claim. Further, Revenue has filed an appeal against the said order of the Tribunal in the Hon'ble Bombay High Court. Before the Hon'ble Bombay High Court, Revenue disputed Tribunal's decision relating to the Cenvat Credit and no appeal was filed against the grant of rebate. Under the circumstances, Tribunal's order has become final and in view of this position, applicant requested that the department may be directed to grant the rebate. On a query from the Bench, Learned Shri Acharya informed that the Deputy/Assistant Commissioner has already granted the rebate. However, the said amount has been adjusted against pending demands against the applicant. Learned Shri Shrikant Acharya also submitted copy of correspondence with the Commissioner, P.M.'s Office, Ministry etc. Acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven appeals vide its order dated 23.6.2011. In pursuance of the said decision of the Tribunal, the lower adjudication authority has granted the rebate claims. Therefore applicant cannot have any grievance that Tribunal's order has not been implemented. The fact that the said rebate amount has been appropriated against other pending demands cannot be construed as non-implementation of this Tribunal's order. This implementation is as per the applicant's and Deputy/ Assistant Commissioner's understanding of the Tribunal's order. However, the Commissioner of Central Excise was of different view and therefore directed the lower authority to file appeal before the Commissioner (Appeals) against the said decision of lower authority to grant rebate. This was in exercise of power granted to Commissioner under Section 35E(2) of the Central Excise Act, 1944. The Commissioner (Appeals) after following the due process of law in which the applicant also participated allowed the appeal of Revenue. The order of the Commissioner (Appeals) was communicated to the applicant. Applicant has chosen not to file any appeal against the said decision of Commissioner (Appeals) till date. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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