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TMI Blog2014 (9) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... der. We expect that in future no order by Dy. Registrar except providing a note on the subject to be placed before Bench for guidance. 3. When the matter was listed before the Bench on 1-2-2013 at the request of the appellant it was adjourned to 18-2-2013 so to ascertain whether the Bench has jurisdiction to hear an appeal relating to rebate dispute arising under Finance Act, 1994 against an order passed by Commissioner (Appeals). The matter came up before the Bench subsequently on 18-2-2013. On that day Revenue's prayer was to grant time to get instructions of the higher authorities. Matter was accordingly adjourned to 25th February, 2013. 4. When the matter came up on 25-2-2013 Revenue submitted that Section 83 of the Finance Act, 1994 had under gone amendment by Finance Act, 2012 in 2012 budget making application of provisions of Section 35EE of Central Excise Act, 1994 to the Finance Act, 1994 for administrations of law relating to service tax under Finance Act, 1994. 5. It was submitted on behalf of Revenue that by virtue of provisions contained in Section 35EE of Central Excise Act, 1944, jurisdiction of the Tribunal is ousted to entertain an appeal relating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2012 denying refund. Once refund is the subject matter of appeal that is not rebate issue to oust Jurisdiction of the Tribunal to entertain appeal against that order. Rule 5 of Export of Service Rules, 2005 conferred power on Central Government to issue Notification No. 12/2005-S.T., dated 19-4-2005 in respect of rebate to be allowed for input services used in export of service. He emphasized that input service claim relating to export service when permitted that results in refund and Tribunal should entertain appeals against denial of refund. To support his argument he relied on Section 85 of Finance Act, 1994 to submit that an order passed by Commissioner of Central Excise under Section 73 or Section 83 or an order passed by Commissioner of Central Excise (Appeals) under Section 85 of Finance Act, 1994 is appealable to Tribunal in terms of Section 86 of Finance Act, 1994. 9. It was further submitted by Sri Mittal that Section 35B of Central Excise Act, 1944, in terms of its first proviso thereunder ousts Jurisdiction of Tribunal to entertain appeal relating to rebate claim. But in absence of such a provision in Finance Act, 1994 and particularly in Section 86, Tribunal cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t Section to Section 83 of Finance Act, 1994. w.e.f. 28-5-2012 by adoption while appeals of appellant under the diary Nos. 5169/2012 and 5171/2012 relate prior 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 order passed under that Section before the commencement of Section 47 of the Finance Act, 1984 (21 of 1984) against which an appeal has not been preferred before such commencement and could have been, if the said Section had not come into force, preferred after such commencement, to the Appellate Tribunal. (1A) The Commissioner of Central Excise may, if he is of the op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legislature has thoughtfully conferred jurisdiction on the revisionary authority to redress the wrong done by orders referred to in first proviso to sub-section (1) of Section 35B of Central Excise Act, 1944. One of such subject is "rebate of duty" of Excise dealt by such clause (b) under proviso to Section 35B(1) of Central Excise Act, 1944. Relevant part of that Section 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 Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 35B of the Central Excise Act, 1994. Certain applicable sections of Central Excise Act, 1994 have been adopted by Section 83 of Finance Act, 1994 for administration of Chapter 5 of the said Act. To avoid repetition, legislature intended that the matters described in various sections of Central Excise Act, 1944 referred to in Section 83 (as extracted aforesaid) in substance govern the proceedings under the Finance Act, 1994 and for example doctrine of unjust enrichment embedded to Section 11B of the Central Excise Act, 1944 are made applicable to the process of refund under Finance Act, 1994. Similarly, the law relating to pre-deposit under Central Excise Act, 1944 has also been incorporated into the Finance Act, 1994 through adoptive machinery provision in Section 83 of the Finance Act, 1994. Appeal mechanism is provided under Section 86 of Finance Act, 1994. To achieve the object of appeals remedy, Section 86 of the Finance Act, 1994 has adopted provisions of Central Excise Act, 1944 concerning power of Tribunal and procedure to be followed in that regard. 18. When the provision of Section 35EE was consciously incorporated into Section 83 of Finance Act, 1994 by legislatur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ionary 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 irresistible 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. We hold accordingly. Single Bench not having dealt Jurisdiction issue in one of the appeals of the appellant that has no significance for our consideration and plea of judicial insistency is baseless. 22. We make it clear that although the amendment to Section 83 of Finance Act has been made w.e.f. 28-5-2012 incorporating Section 35EE therein, that does not confer right on the appellant to say that this incorporation having been a prospective legislation, Tribunal shall entertain Rebate cl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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