M/s Nahar Industrial Enterprises Limited v. Customs, Excise and Service Tax Appellate Tribunal, New Delhi

CORAM: HON'BLE MR.JUSTICE ADARSH KUMAR GOEL ACTING CHIEF JUSTICE HON'BLE MR.JUSTICE AJAY KUMAR MITTAL Present: Mr. Surjeet Bhadu, Advocate for the appellant. Adarsh Kumar Goel, ACJ.

This appeal has been preferred by the assessee under section 35G of the Central Excise Act, 1944 (‘the Act’) against the Central Excise and Service Tax Appellate Tribunal’s Final order No.345/2011 dated 1.4.2011 in Appeal No.E/1784/2010, claiming following substantial questions of law:- “i) Whether Respondent No.1 has jurisdiction to entertain and decide appeal filed by the appellant under section 35B of the Central Excise Act, 1944? ii) Whether demand under section 11A of the Central Excise Act, 1944 can be equated with rebate claim under Rule 18 of Central Excise Rules, 2002 attracting bar in terms of proviso to Section 35B? iii) Whether the present issue can be said to be relating to rebate when it is admitted that rebate is admissible but the dispute is relating to mode of payment? CEA No.62 of 2011 2 Iv) Whether respondent No.2 was correct in confirming the demand under section 11A where the rebate claim sanctioned by the Assistant Commissioner was not challenged by the department and has attained finality? v) Whether great and manifest injustice has been done to the appellant by the impugned action of the respondents?

The Tribunal held that since the order of the Commissioner (Appeals) relates to rebate on duty of excise referred to in Clause (b) of first Proviso to Section 35B of the Act, the remedy of appeal before the Tribunal was not available and the remedy of the appellant was to file revision petition under section 35EE of the Act.

We have heard learned counsel for the appellant. In view of the plain language of the statute, the Tribunal appears to be right in holding that appeal was not maintainable and the remedy of the appellant was to file a revision petition.

Accordingly, we do not find any ground to interfere with the view taken by the Tribunal. However, having regard to the fact that the order of the Commissioner (Appeals) itself stated that the appellant could take the remedy of filing appeal before the Tribunal, the appellant is entitled to seek extension of time under Proviso to section 35EE(2) of the Act.