TMI Blog2016 (6) TMI 995X X X X Extracts X X X X X X X X Extracts X X X X ..... for Section 35EE read with proviso to Section 35(B) (1) of the Central Excise Act, 1944 under which the instant revision application has been made. - Revision Application filed before Central Government in terms of Section 35 EE of Central Excise Act 1944 is beyond jurisdiction - Revision application dismissed. - F.No. 195/998/13-RA-CX - ORDER NO. 58/2016-CX - Dated:- 29-4-2016 - MINISTRY OF FINANCE ORDER: This Revision Application is filed by M/S Cheviot Co. Ltd. (hereinafter referred to as Applicant) against the Order-in-Appeal No.11-12/Kol-VII/2013 dated 09.09.2013 passed by Commissioner of Central Excise, (Appeals-I), Kolkata with respect to Order-in-Original No. 2-R/BB-I/Kol-VII/10-11 dated 12.07.2010 passed by the Assistant Commissioner of Central Excise Division, Budge; Budge Division-I, Kolkata-VII Commissionerate. 2. Brief facts of the case are that the applicant,a manufacturer of articles of Jute falling under classification no. 53071010 of Central Excise Tariff Act, 1985 have submitted a refund claim for ₹ 13,47,341/- to the Assistant Commissioner of Central Excise Budge, Budge-I Division under Section 11 B of the Central Excise Act, 1944 as they hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 11 B (2) of the Central Excise Act, 1944, the claim of refund of Education Cess and Higher Education Cess amounting to ₹ 4282 and 2140 respectively for the period from 01.07.2008 to 04.08.2008 will not be rejected for being time barred. 2.2 The Assistant Commissioner, Central Excise, Budge, Budge-I Division, Kolkata-VII Commissionerate vide Order-in-Original No.2-R/BB-I/Kol-VII/10-11 dated 12.07.2010 rejected the refund of Jute Cess amounting to ₹ 13,08,097/and claim of Refund of Education Cess amounting to ₹ 4282 and Higher Education Cess amounting to ₹ 2140 for the period 01.07.2008 to 04.08.2008 but refund of Education Cess amounting to ₹ 21886 and Higher Education Cess amounting to ₹ 10936 for the period from 05.08.2008 to 18.06.2009 was allowed. 3. Aggrieved by the said order, the applicant as well as the Department filed appeal before the Commissioner (Appeals-I) Kolkata, who vide Order-in-Appeal No. 11-12/Kol-VII/2013 dated 09.09.2013 rejected the order of the original authority by disallowing the refund claim of Jute Cess and ordered to deposit the sanctioned amount of ₹ 32,822/- along with appropriate interest int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 2. Convergys India Services Pvt. Ltd vs CST, reported in That the rejection of refund claim of jute cess inadvertently paid on an export transaction by the appellate Commissioner is ex facie bad in law 4.3. That the DTA unit and the SEZ unit of the applicant in the instant case are owned by the same corporate entity. That the two units are separate profit centres these don't have any separate legal existence and/or identity. That the supplies from DTA unit to the SEZ does not attract any sales tax in as much as there are no Wvo separate persons buying and selling the goods. That the findings in the Order-in-Appeal that the DTA unit and the SEZ unit are to be reckoned as separate persons for all legal purposes suffers from serious infirmities. 4.4. That jute cess in the instant case was paid under a mistake of law, in as much as Section 7 of the SEZ Act specifically exempts payment of jute cess in respect of goods supplied from DTA to a unit in the SEZ. That in the present case, it is undisputed that the jute yarn supplied by the DTA unit during the relevant period was received by the SEZ Unit and such supplies were made under the cover of ARE-I, Bill of Export and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ule does not prescribe that the rebate claim shall have to be filed under Rule 18 read with Notification No. 19/2004-CE(NT) as was erred by the adjudicating authority while passing the Order-in-Original. 4.8. That SEZ Act is a special enactment and by virtue of Section 51 thereof has an over-riding effect over any other law to the extent the provisions of such other law are inconsistent. That the Order-in-Original in so far as it sought to deny the refund on the ground that Rule 4 of the Jute Cess Rules, did not provide for any dispensation from payment of jute cess in respect of jute goods exported out of India is completely unjustified and stems from a clear mis-interpretation of law. That the Hon'ble Supreme Court in the case of Talchar Municipality vs Talcher Regulated Market Committee reported in 2004 (6) SC178 wherein the Hon'ble Court has categorically held that in case of a conflict between two special enactments, the one with overriding provisions will prevail. That the SEZ Act is 58/20160 not only later in time in comparison to the Jute Cess Act, but also contains overriding provisions. That the specific exemption conferred by Section 7 of the SEZ Act has to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gher Education Cess for the period from 01.07.2008 to 18.06.2009, when the payment of any such duty, cess is exempted vide Section 7 of the SEZ Act, 2005 subject to such terms and conditions and limitations as may be prescribed by the concerned authorities. Show Cause Notice was issued to the applicant alleging therein that their initial refund claim for the period from 01.07.2008 to 04.08.2008 has become time barred and hence not grantable; that as per Notification No. 19/2004- CE(NT) dated 06.09.2004 [equivalent to Notification No. 42/2001CE(NT) dated 26.06.2001 ] duties and cesses allowable for rebate under Rule 18 of the Central Excise Rules, 2002, do not come within the purview of duty for the purpose of Refund claim; that the Jute Cess also cannot be refunded due to the restriction as enshrined in Rule 4 of the Jute Manufacturers Cess Rules, 1984. The adjudicating authority rejected the refund of Jute Cess amounting to ₹ 13,08,097/- and claim of Refund of Education Cess amounting to ₹ 4282 and Higher Education Cess amounting to ₹ 2140 for the period 01.07.2008 to 04.08.2008 but refund of Education Cess amounting to ₹ 21886 and Higher Education Cess am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim did not satisfy the provision of Section 11 B of the Central Excise Act, 1944 in regard to unjust enrichment he did not find any necessity to discuss the points raised by the party in their appeal against the same impugned order and disallowed the refund claim. 9.Government further observes that under Section 35 EE of the Central Excise Act, 1944, a Revision Application against the Order of Commissioner (Appeals) passed under Section 35 A ibid lies with Government only if such orders relate to cases as mentioned in provision to sub-section (1) of Section 35(B) of the Act. Sub-section (1) of Section 35 B of Central Excise Act, 1944 reads as under:- (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 Con7missioner of Central Excise as an adjudicating authority; (b) an order passed by the Commissioner (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 Commissioner of Central Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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