TMI Blog2014 (4) TMI 884X X X X Extracts X X X X X X X X Extracts X X X X ..... 86; it continued to possess jurisdiction to decide on matters pertaining to rebate and refund. Since CESTAT did not decide the matter on merits, its decision – holding that it lacked jurisdiction- is set aside. The CESTAT shall consequently decide the merits of the appeal pending before it, after hearing the parties. - Decided in favor of assessee. - WP (C) No. 6224/2013 - - - Dated:- 20-3-2014 - S. Ravindra Bhat And R. V. Easwar,JJ. For the Petitioner : Mr. J. K Mittal, Adv. For the Respondent : Mr. Mukesh Anand, Adv. JUDGMENT Mr. Justice S. Ravindra Bhat (Open Court) 1. The petitioner challenges the decision of the Central Excise Service Tax Appellate Tribunal (CESTAT) whereby it ruled that an appeal in respect of refund and rebate claims is not maintainable before it in view of Section 35EE of the Central Excise Act since it finds specific mention in Section 83 after its amendment in 2011. 2. The facts briefly are that the petitioner is a service tax assessee. It made a refund claim in respect of service tax export turn-over. Aggrieved by an order refusing the refund, it preferred an appeal to the CESTAT under Section 86. The Tribunal by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ear rebate appeal is erroneous. Adopted provisions of Central Excise Act, 1994 in Section 83 of Finance Act, 1994 conveys its intention that intent and spirit of provisions of Central Excise Act, 1944 is not given go bye and the interpretation that defeats the object of the statute is avoided to achieve the object of adopting statute. The appellant is accordingly unable to gain from the decision in British Physical Laboratory (supra) cited by it. This leaves no scope for the appellant to say that revisionary authority is ousted of his jurisdiction to entertain rebate claim of input service used in export of service. 21. In view of the above analysis, the irrestible conclusion shall be that the Tribunal by virtue of section 83 of Finance Act, 1994, should not entertain the rebate claim covered by first proviso to section 35B(1) of Central Excise Act, 1944, in the appellate jurisdiction under section 86 of Finance Act, 1994 because revisionary jurisdiction and appellate jurisdiction are clearly demarcated in law and nature and character thereof in common law is well understood. Consequently, Revenue succeeds in saying that rebate claim matters should go to revisionary jurisdiction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions of the following section of the Central Excise Act, 1994, as in from time to time, shall apply, so far as may be, in relation to service tax as they apply in relation to a duty excise:- 9C, 9D, 11B, 11C, 12, 12A, 12B, 12C, 12D, 12E, 14, 14AA, 15, 33A, 35F, 35FF, to 350 (both inclusive), 35Q, 36, 36A, 36B, 37A, 37B, 37C, 37D, 38A and 40 . 7. Section 35EE of Central Excise Act, 1944 has been made applicable to Finance Act, 1994, incorporating that Section to Section 83 of Finance Act, 1994 w.e.f. 28.5.2012 by adoption to 28.5.2012. Section 35EE of Central Excise Act, 1944 prior to 28.5.2012 read as under : (1) The Central Government may, on the application of any person aggrieved by any order passed under section 35A, where the order is of the nature referred to in the first proviso to, sub-section (1) of section 35B, annul or modify such order. Provided that the Central Government may in its discretion, refuse to admit an application in respect of an order where the amount of duty or fine or penalty, determined by such order does not exceed five thousand rupees. Explanation : For the purposes of this sub-section, order passed under section 35A includes an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enhancing the duty shall be made under this section unless the person affected by the proposed order is given notice to show cause against it within the time limit specified in section 11A. 8. The relevant part of Section 35B(1) of Central Excise Act, 1944 reads as under : 35B(1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order (a) A decision or order passed by the Collector of Central Excise as an adjudicating authority; (b) An order passed by the Collector (Appeals) under section 35A; (c) An order passed by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) (hereafter in this Chapter referred to as the Board) or the Appellate Collector of Central Excise under section 35, as it stood immediately before the appointed day. (d) An order passed by the Board or the Collector of Central Excise, either before or after the appointed day, under section 35A, as it stood immediately before that day: Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s distinguished from a persona designata, without any words of limitation then, the ordinary incident of procedure of that court including any general right of appeal or revision against its decision is attracted. 22. But an exception to the aforementioned rule is on matters where the special Act sets of it a selfcontained Code the applicability of the general law procedure would be impliedly excluded. (See Upadhyaya Hargovind Devshanker v. Dhirendrasinh Virbhadrasinnhji Solanki). (emphasis supplied) 10. In view of the above discussion, it is held that the amendment to Section 83 by making a specific reference to Section 35EE of the Central Excise Act, did not make any difference to the nature of jurisdiction exercisable by the CESTAT under Section 86; it continued to possess jurisdiction to decide on matters pertaining to rebate and refund. For this reason, the question of law is answered in favour of the assessee/appellant and against the revenue. Since CESTAT did not decide the matter on merits, its decision holding that it lacked jurisdiction- is set aside. The CESTAT shall consequently decide the merits of the appeal pending before it, after hearing the parties. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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