M/S. Supreme Cylinders Ltd vs C.C.E. Jaipur

[Arising out of Order-in-Appeal No. 54(VC)/CE/JPR-I/2013 dated 18.06.2013 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), Delhi].

For approval and signature:

Honble Shri Ashok Jindal, Member (Judicial)

1 Whether Press Reporters may be allowed to see 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 CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

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

4 Whether Order is to be circulated to the Departmental authorities?

M/s. Supreme Cylinders Ltd. .Appellants

Vs.

C.C.E. Jaipur .Respondent

Appearance:

Shri Mohit Fatehpuria, Authorized Representative for the Appellants

Shri A.K. Dhawan, DR for the Respondent

CORAM:

Hon'ble Shri Ashok Jindal, Member (Judicial)

Date of Hearing: 17.03.2015

FINAL ORDER NO. 50799/2015-EX(SM)

Per Ashok Jindal:

The appellant is in appeal against the impugned order for rejection of their refund claim of Rs.24,974/-.

2. It was pointed out to the appellant that why not their appeal be dismissed as per Section 35 (B) proviso of the Central Excise Act 1944 not to entertain the appeal where amount is less than Rs.50,000/-. The appellant produced the CBEC instructions dated 17.08.2011 and submits that monetary limits applies to the department and not the appellant / assessee.

3. Heard the appellant and perused the provisions of Section 35 (B) of the Central Excise Act 1944. For the ease of convenience it is reproduced below:

Any person aggrieved by any of the following orders may(1) appeal to the Appellate Tribunal

against such order 

(a) a decision or order passed by the [Commissioner 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 Excise under section 35, as it stood immediately before

the appointed day;

(d) an order passed by the Board or the [Commissioner 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 case of loss of goods, where the loss occurs in transit from(a) 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;

a rebate of duty of excise on goods exported to any country or(b) territory outside India or on

excisable materials used in the manufacture of goods which are exported to any country or

territory outside India;

goods exported outside(c) 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:

Provided further that the Appellate Tribunal may, in its discretion, refuse to admit an appeal in

respect of an order referred to in clause (b) or clause (c) or clause (d) where 

in any disputed case, other than a case where the determination(i) of any question having a

relation to the rate of duty of excise or to the value of goods for purposes of assessment is in

issue or is one of the points in issue, the difference in duty involved or the duty involved; or

the amount of fine or penalty determined by such order,(ii) does not exceed [fifty thousand

rupees ;

Every appeal against any order of the nature(1A) referred to in the first proviso to sub-section

(1), which is pending immediately before the commencement of Section 47 of the Finance Act,

1984, before the Appellate Tribunal and any matter arising out of, or connected with, such appeal

and which is so pending shall stand transferred on such commencement to the Central

Government, and the Central Government shall deal with such appeal or matter under section

35EE as if such appeal or matter were an application or a matter arising out of an application

made to it under that section.

The Central Board of Excise and Customs constituted under the (1B) (i) Central Boards of

Revenue Act, 1963 (54 of 1963) may, by notification in the Official Gazette, constitute such

Committees as may be necessary for the purposes of this Act.

(ii) Every Committee constituted under clause (i) shall consist of two Chief Commissioners of

Central Excise or two Commissioners of Central Excise, as the case may be.

The Committee of Commissioners of Central Excise (2) may, if it is of opinion that an order

passed by the Appellate [Commissioner of Central Excise under section 35, as it stood

immediately before the appointed day, or the [Commissioner (Appeals) under section 35A, is not

legal or proper, direct any Central Excise Officer authorised by him in this behalf (hereafter in this

Chapter referred to as the authorised officer) to appeal [on its behalf to the Appellate Tribunal

against such order.

Every appeal under this section shall be filed within (3) three months from the date on which the

order sought to be appealed against is communicated to the Commissioner of Central Excise , or,

as the case may be, the other party preferring the appeal.

On receipt of notice that an appeal has been preferred (4) under this section, the party against

whom the appeal has been preferred may, notwithstanding that he may not have appealed

against such order or any part thereof, file, within forty-five days of the receipt of the notice, a

memorandum of cross-objections verified in the prescribed manner against any part of the order

appealed against and such memorandum shall be disposed of by the Appellate Tribunal as if it

were an appeal presented within the time specified in sub-section (3).

The Appellate Tribunal may admit an appeal or permit the (5) filing of a memorandum of cross objections

after the expiry of the relevant period referred to in sub-section (3) or sub-section (4), if

it is satisfied that there was sufficient cause for not presenting it within that period.

(6) An appeal to the Appellate Tribunal shall be in the prescribed form and shall be verified in the

prescribed manner and shall, irrespective of the date of demand of duty and interest or of levy of

penalty in relation to which the appeal is made, be accompanied by a fee of, 

(a) where the amount of duty and interest demanded and penalty levied by any Central Excise

Officer in the case to which the appeal relates is five lakh rupees or less, one thousand rupees;

(b) where the amount of duty and interest demanded and penalty levied by any Central Excise

Officer in the case to which the appeal relates is more than five lakh rupees but not exceeding

fifty lakh rupees, five thousand rupees;

(c) where the amount of duty and interest demanded and penalty levied by any Central Excise

Officer in the case to which the appeal relates is more than fifty lakh rupees, ten thousand rupees

Provided that no such fee shall be payable in the case of an appeal referred to in sub-section (2)

or a memorandum of cross-objections referred to in sub-section (4).

Every application made before the Appellate Tribunal, (7) 

(a) in an appeal for grant of stay or for rectification of mistake or for any other purpose; or

(b) for restoration of an appeal or an application,

shall be accompanied by a fee of five hundred rupees :

Provided that no such fee shall be payable in the case of an application filed by or on behalf of

the Commissioner of Central Excise under this sub-section.

4. On going through the provisions, I find if the order passed by Ld. Commissioner (A) under Section 35 (A) of the Act, the amount is less than Rs.50,000/- and Tribunal has its discretion to refuse or admit the appeal. Therefore, by invoking the provision of Section 35 (B) proviso of Central Excise Act 1944 as the amount is less than Rs.50,000/-.

5. Therefore, I refuse to admit the appeal. Accordingly appeal is dismissed.

(Dictated and pronounced in the open court)

(Ashok Jindal) Member (Judicial)

Bhanu

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E/59200/2013-EX(SM)