Commissioner Of Central Excise vs Jcb India Ltd

IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI

COURT No. II

APPEAL No.E/85 912 & 85913/15

(Arising out of Order-in-Appeal No.PUN-EXCIS-001-167-14-15 DATED 23/01/2015 & PUN-EXCUS-001-APP-165-14-15 dated 22/01/2015 passed by Commissioner of Central Excise, (Appeals), Pune)

For approval and signature:

Honble Mr. P.K. Jain, Member (Technical) Honble Mr. S. S. Garg, Member (Judicial)

1. Whether Press Reporters may be allowed to see :No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the : Yes CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy :Seen of the Order?

4. Whether Order is to be circulated to the Departmental :Yes authorities? ========================================

Commissioner of Central Excise, Appellant Pune

Vs. JCB India Ltd., Respondent

Appearance:

Shri.V.K.Agarwala, Addl. Comm. (AR) for appellant None for respondent

CORAM:

Honble Mr. P.K. Jain, Member (Technical) Honble Mr. S.S. Garg, Member (Judicial)

Date of Hearing : 18/05/2015 Date of Decision : 18/05/2015

ORDER NO

Per: P. K. Jain

1. Revenue has filed these appeals on 20/04/2015 against Order-in-Appeal Nos. Order-in-Appeal No.PUN-EXCIS-001-167-14-15 DATED 23/01/2015 & PUN-EXCUS-001-APP-165-14-15 dated 22/01/2015 passed by Commissioner of Central Excise, (Appeals), Pune.

2. On perusal of the appeals it is found that the matter relates to rebate of duty of excise on goods exported. Section 35B reads as follows:

Section 35B. Appeals to the Appellate Tribunal. (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 order referred to in clause (b) if such order relates to,-

(a) a case of loss of goods, where the loss occurs in transit from a factory to a warehouse or to another factory, or from one warehouse to another, or during the course of processing of the goods in a warehouse or in storage, whether in a factory or in a warehouse;

(b) a rebate of duty of excise on goods exported to any country or territory outside India or on excisable materials used in the manufacture of goods which are exported to any country or territory outside India;

(c) goods exported outside India (except to Nepal or Bhutan) without payment of duty.

(d) credit of any duty allowed to be utilised towards payment of excise duty on final products under the provisions of this Act or the rules made thereunder and such order is passed by the Commissioner (Appeals) on or after the date appointed under Section 109 of the Finance (No.2) Act, 1998.

3. Clause (b) of proviso to Section 35B (i) - No appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect' of any order referred to in clause (b) of Section 35B (i) if such order relates to rebate of duty of excise on goods exported to any country or territory outside India. In view of this position, this Tribunal have no jurisdiction to entertain such appeals and the appeals filed by the Revenue are therefore, not maintainable and are dismissed. However, in the interest of justice, Revenue is at liberty to file appeal before the appropriate forum.

4. Appeals are disposed of in the above terms.

(Dictated in Court)

(S.S. Garg) Member (Judicial) (P.K. Jain) Member (Technical)

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