TMI Blog2020 (10) TMI 532X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in the case of Commercial Taxes Officer vs. Bombay Machinery Store [ 2020 (4) TMI 769 - SUPREME COURT ] held that we are of the view that interpretation of the Division Bench of Delhi High Court given the case of Arjan Dass Gupta does not lays down correct position of law. In the event, the authorities felt any assessee or dealer was taking unintended benefit under the aforesaid provision of the Act, 1956, then proper course would be legislative amendment. The Tax Administration authority cannot give their own interpretation of legislative provisions on the basis of their own perception of trade practice. The administrative exercise, in effect, would result in supplying words to legislative provisions, as if to cure omissions of the legislature. The Single Member Bench of this Tribunal is having the jurisdiction to decide the issue of interest irrespective of monetary limit. The objections raised by the Revenue are answered that the Single Member Bench of this Tribunal is having the jurisdiction to decide the issue of interest irrespective of any amount. The matter is listed for final hearing on 27.10.2020 alongwith the stay application. - Appeal No. E/60057/20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in hand is to be decided by Division Bench. Further, the Ld. AR produced the judgement passed by the Hon ble Karnataka High Court in the case of REVA Electric Car Pvt. Ltd. vs. Commissioner of Central Excise, Bangalore-I 2011 (269) ELT 8 (Kar.) to say that the interest issue can be heard by only division bench. During the course of argument Sh. Rajiv Gupta Ld. Commissioner (AR) also argued that in terms of Section 35D (3) of the Central Excise Act, 1944 the Single Member Bench of this Tribunal have no jurisdiction to deal the said issue. To support of this contention, he relied on the decision by the Division Bench of this Tribunal in the case of Dhampur Sugar Mills Ltd. CCE Meerut 2006 (204) ELT 106 (Tri.-Del.). 3. The matter was taken up on 29.09.2020 for hearing. 4. After examination,as per Public Notice No. 2 dated 10.08.2020 issued by the Hon ble President of this Tribunal, any party desirous of getting an appeal heard by video conferencing may send a request by e mail. Accordingly, it was held that there is no bar for the respondent for a request for hearing the appeal through video conferencing. 5. Thereafter, this Tribunal asked the Ld. Counsel of the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tial relief by the Hon ble Division Bench of this Tribunal, and the appellate authority granted interest on deposit from the date of deposit. Hence the jurisdiction to hear the case of interest of amount more than 50 lakhs lies with Division Bench only. Here, it is pertinent to mention that the party had never raised any objection on the jurisdiction of the Division Bench of the Hon ble Tribunal in that case of Som Flavour masala Ltd. Supra. iv. That as per Section 35D(3) of the Central Excise Act, 1944 (as amended), the matter lies under the jurisdiction of the Hon ble Division Bench of the Tribunal instead of the Hon ble Single Member Bench as the amount of interest involved in the matter is more than 5.5 crores. (Calculation Sheet placed on record during hearingon 29.09.2020) v. That as per Section 35D(3) of the Central Excise Act, 1944 (as amended) reproduced as below, the matter lies under the jurisdiction of the Hon ble Division Bench of the Tribunal instead of the Hon ble Single Member Bench. (3) The president or any other member of the Appellate Tribunal authorised in this behalf by the President may, Sitting Singly, dispose of any case which has been allotted to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 020, Appeal No. E/60057/2020 E/CROSS/60220/2020 dated 25.09.2020 on the clarification on the Public Notice No.2 dated 10.08.2020. The same issue may kindly be decided alongwith this prayer. It is, therefore,humbly prayed that the listed case be transferred and listed before Hon ble Division Bench of the Tribunal. 9. The Ld. Counsel for the Respondent also filed written submission as under:- The jurisdiction of the Single Member Bench of CESTAT is derived from Section 35 D of the Central Excise Act 1944. Procedure of Appellate SECTION 35D. Tribunal The . - (1) provisions of sub-sections (1), (2), (5) and (6) of section 129C of the Customs Act, 1962 (52 of 1962), shall apply to the Appellate Tribunal in the discharge of its functions under this Act as they apply to it in the discharge of its functions under the Customs Act, 1962. *] * * [(2) The President or any other member (3) of the Appellate Tribunal authorised in this behalf by the President may, sitting singly, dispose of any case which has been allotted to the Bench of which he is a member where - (a) in any disputed case, other than a case where the determination of any question having ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the application shall be accompanied by such documentary or other evidence (including the documents referred to in section 12A) as the applicant may furnish to establish that the amount of [duty of excise and interest, if any, paid on such duty] in relation to which such refund is claimed was collected from, or paid by, him and the incidence of such [duty and interest, if any, paid on such duty] had not been passed on by him to any other person : ] * * * * [ If, [(2) on receipt of any such application, the [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] is satisfied that the whole or any part of the [duty of excise and interest, if any, paid on such duty] paid by the applicant is refundable, he may make an order accordingly and the amount so determined shall be credited to the Fund : Section 11 B does not prescribe any no monetary jurisdiction for filing of Application for Refunds. The Deputy Commissioner is the authority before which application for refund is to be filed irrespective of the amount . The Deputy Commissioner can sanction the Refund or show cause to the applicant as to why refund should not be rejected. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notices demanding duty short paid or not paid and erroneously refunded. Similar powers exist in Service Tax under Section 73 and Section 83A of the Finance Act, 1994 (Notification No. 44/2016-Service Tax dated 28-9-2016 refers). It is hereby directed that henceforth powers of adjudication both in Central Excise and Service Tax shall be exercised, based on the monetary limit of the duty/tax/credit involved in a case, as under :- Sl. No. Central Excise Officer Monetary Limits of duty/tax/credit demand for Central Excise and Service Tax 1. Superintendent Not exceeding rupees ten lakh 2. Deputy/Assistant Commissioner Above ten lakh but not exceeding rupees fifty lakh 3. Additional/Joint Commissioner Above fifty lakh but not exceeding rupees two crore 4. Commissioner Without limit i.e. cases exceeding rupees two crores (i) Cases in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ber bench will also have the jurisdiction to hear the Refund cases adjudicated by the Deputy Commissioner. 4) Single Member bench has the jurisdiction to hear cases involving interest on duty irrespective of the amount of interest. There is no mention of the word interest also in Section 35 D. The monetary jurisdiction of the Single member is determined by duty, not interest. There can be a case where duty is less than 50 lakhs, but due to lapse of considerable time, the interest if calculated is more than 50 lakhs. Single member is not barred from hearing cases where interest is more than 50 lakhs. Master Circular No. 1053/2/2017-CX., dated 10-3-2017 on Show Cause Notice, Adjudication and Recovery states that 11.4 regards adjudication of the notices As issued for recovery of interest alone, it is clarified that these cases should be decided by the proper officer based on the monetary limit fixed for the duty amount involved and not on the basis of the amount of interest. Therefore, the amount of duty on which interest has not been paid, should be the monetary criterion for deciding the authority to decide such cases. 5) In the case of Dhampur Sugar Mills Ltd vs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is allotted to DB. Rule 9 (3) (4) of the CESTAT procedure Rules makes it clear that appeals which can be heard by single member can be heard by DB or appeal that can be heard by DB can be heard by Larger Bench. RULE [9. (3) In the case of an appeal which can be heard by a single Member, (3) Memorandum of appeal shall be filed in triplicate and number of copies of the order shall be three instead of four. Note : - As to which appeals are to be heard by single Members shall be determined by the President by separate orders in the light of the relevant statutory provisions. Where an appeal which can be heard by a (4) single Member is referred to or placed before a two-Member Bench or an appeal which can be heard by a two-Member Bench is referred to a Larger Bench, the appellant shall immediately furnish an additional copy of the memorandum of appeal and of the order or orders of the lower authorities.] In the case of Chief Commissioner of Cus., Ahmedabad Vs.Ashapura Garments Ltd 2017 (346) E.L.T. 599 (Tri. - Ahmd.) The Single Member held that it had jurisdiction to hear the case, but transferred the case to DB The case of Refund was allotted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d claim was dismissed by the Single Member Bench of the Tribunal holding that as monetary limit during the relevant time of Single Member Bench of this Tribunal was ₹ 10.00 Lakhs, therefore, the appeal is not maintainable. In those set of facts, the Hon'ble High Court held that the matter is to be heard by the Division Bench of the Tribunal. It is apparent from the facts of thesaid case, the amount of cenvat credit involved was of ₹ 14,97,508/- alongwith fine, penalty and interest, the Hon'ble High Court has directed the matter to be heard by Division Bench of the Tribunal which is not in the case in hand. In fact, in the impugned order itself, the Ld. Commissioner (Appeals) has only dealt the issue of interest claimed by the Respondent and allowed the interest to the Respondent. As there is no other issue except interest, therefore, as per the provision of Section 35D (3)of the Act, it is very much clear that the said provision prohibits Single Member not to hear the case where the issue is with relation to rate of duty, valuation of goods, or duty or fine or penalty is more than ₹ 50 Lakhs. The intent of the legislature is very much clear in mind that no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces by the Chief Commissioner of Customs wherein this Tribunal observed as under:- 13. We find that the specific and direct issue before us in the appeals herein is whether the order dated 4-2-2016 of Chief Commissioner of Customs, rejecting Compounding of offences Applications of the respondents as premature and not maintainable, is correct. The value involved for determination for the purposes of assessment of duty or rate of duty or fine involved are not the issue, nor the issue raised in the appeals, nor for decision before us. The decision of the Hon ble Supreme Court in the case of Navin Chemicals Manufacturing Trading Company Limited (supra) lays down the principle of direct or proximate relation in respect of Section 129C(4). We are not able to persuade ourselves to accept the line of contention of the ld. Special Counsel and to decide the jurisdiction of the Single Member Bench on the basis of the value or duty or drawback amount of the root matter. Valuation dispute, or Rate of duty dispute, or the drawback amount eligible, are not before us to decide in the present appeal. We are called upon here to decide whether the impugned order rejecting the Compounding of O ..... X X X X Extracts X X X X X X X X Extracts X X X X
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