Chartered Accountant
Bookmark and Share
click here to subscribe our newsletter
 
 
Corporate News *  Dept. Can’t Classify Product as Zarda Scented Tobacco After Repeatedly Approving It As Chewing Tobacco: CESTAT *  Mere Uploading Of GST Order On Portal Is Not “Valid” Service: Tripura HC *  CGST Can Proceed Even If SGST Closed Similar Case Earlier: Delhi HC *  SC upholds 28% GST on online gaming with retrospective effect. *  West Bengal Govt cuts E-way Bill Threshold limit to Rs. 50,000 for intra-state goods movement. *  Criminal Prosecution Under Central Excise Act Can’t Continue After CESTAT Sets Aside Duty Demand on Merits: Punjab & Haryana High Court. *  Madras High Court Quashes GST Assessment Orders for Denial of Personal Hearing; Remands Matter Subject to 10% Deposit *  Ex Parte GST Order: Madras High Court Directs Immediate Removal of Bank/ITC Attachment Upon 25% Deposit *  J.K. Cement Receives GST Demand Order of Rs 8,02,113/- from Ahmedabad Tax Authority *  Delhi Police EOW Busts Alleged Rs. 128 Crore GST Fake Invoice Network. *  REPLY TO SCN CAN’T BE TREATED AS “EMPTY FORMALITY”: ORISSA HIGH COURT QUASHES GST DEMAND OF RS. 57.30 LAKH *  Challenge to CGST Provisions restricting ITC to Bonafide Purchasers : Allahabad HC issues notice *  CBIC Notifies Revised Customs Tariff Values for Edible Oils, Gold, Silver, Brass Scrap and Areca Nuts *  Delhi HC Orders Removal of GST Attachment After Statutory 1 Year Period Expired *  GSTAT Extends Relaxed Appeal Filing Guidelines till December 31, 2026 *  AO fails to Provide Import - Export Data from DGFT to Taxpayer for Reconciliation *  Gold, Silver Imports To Get Costlier As Govt Raises Customs Duty To 10%  *  GSTAT Enables Pre-Payment Access to Document Upload and Checklist for GST Appeal Filing *  GST Portal Restrictions Can’t Override Statute: Gujarat HC Allows Cross-State Transfer Of CGST ITC After Amalgamation *  Centre Revises HS Codes for Large Diameter Steel Pipes Used in Oil & Gas Pipelines *  Customs Duty Liability Arises On Warehouse Clearance Date: Supreme Court *  Government lifts export ban on de-oiled rice bran *  CESTAT Grants 12% Interest on Pre-Deposit for Investigation from Date of Deposit till Refund and Denies Interest on Interest. *  Government Overhauls GST Classification Framework for Non-Alcoholic Beverages; Fruit Juice Drinks, Milk-Based Beverages and Caffeinated Drinks to Attract Revised 5% and 40% GST Rates from May 1, 2026 *  India’s gross GST collections hit a record Rs 2.42 lakh crore in April, up 8.7% *  Customs clearance stalled, revenue hit over MRP dispute *  Shipping Corporation explores Middle East routes as Hormuz tensions disrupt cargo movement *  India, Kenya signs MoU for exchange of pre-arrival customs information *  No demand of Taxes under Reverse Charge if Tax Already Discharged by Service Provider under forward charge *  The India-New Zealand Free Trade Agreement, signed "once-in-a-generation" deal that eliminates tariffs on 100% of Indian exports to New Zealand
Subject News *  Consignment Sales Can’t Be Reclassified as Inter-State Sales Based on Pre-Agreement Evidence: CESTAT *  Exporter Can’t Be Denied Advance Authorization Benefit Due To ICEGATE Technical Glitch: Delhi High Court *  No GST Demand For Mere Wrong Set-Off Of IGST Credit Under CGST And SGST Heads: Kerala HC. *  Cenvat Credit Can’t Be Denied on Input Services Having Nexus With Manufacturing Activities: CESTAT *  Pending Proceedings Can’t Survive Without Saving Clause: Calcutta High Court Quashes GST Demand of Rs. 6.28 Crore After Omission of Rule 96(10) *  Madras HC Quashes GST Demands on TASMAC (Tamil Nadu State Marketing Corporation) Bar Licence Fee *  GST Proceedings Cannot Survive Omitted Rule Without Saving Clause: Calcutta HC *  Provisional Release Can’t Be Denied Solely On Dept. Suspicion Of Misclassification And Undervaluation Of Imported Goods: CESTAT *  Businesses Should Not Be Kept Outside GST Regime Without Due Process: Gauhati High Court *  Punjab & Haryana HC Directs Reconsideration of Contractors’ Claim for Additional GST Payment After Tax Rate Hike From 12% to 18% *  S. 108 Statements Can’t Be Sole Basis Without Following Section 138B Procedure: CESTAT *  Bombay High Court Frames Key Questions on Mandatory Distribution of ITC U/s 20 CGST Act *  Filing of Annexure-B for Refund Applications involving Accumulated ITC using the offline utility in GST portal: GSTN *  No Service Tax on Parent Company’s Un-Invoiced Cost Allocations Without Actual Service or Consideration: CESTAT  *  Calcutta High Court Upholds GST Classification of Polypropylene Leno Bags as Plastic Products *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  GSTAT Issues Major Bench Allocation Framework; All Appeals to First Go Before Division Bench *  ITC Blocking Without Reasoned Order Violates Rule 86A; Punjab & Haryana HC Directs Release of Credit *  Allahabad HC Refuses Bail to CGST Superintendent In Rs. 70 Lakh Bribery Case *  S.130 Can’t Be Invoked Without Prior Tax Determination U/s 73/74: Allahabad High Court Quashes GST Confiscation Proceedings *  SC grants Bail to Rs 54cr GST case  *  Karnataka HC Sets Aside Duplicate GST Orders, Orders Fresh Hearing on GSTIN Cancellation *  DRC-01 Summary Can’t Replace Mandatory SCN: Gauhati High Court *  Transfer Of Unutilized ITC After Amalgamation - Supreme Court Issues Notice *  PUNJAB & HARYANA HC QUASHES GST CANCELLATION NOTICE FOR FAILURE TO PROVIDE CBIC ENQUIRY REPORT *  LICENSE FEE, TECHNICAL ASSISTANCE CHARGES NOT INCLUDIBLE IN CUSTOMS VALUE UNLESS THEY ARE A CONDITION OF SALE: CESTAT *  DELHI HC ORDERS REMOVAL OF GST ATTACHMENT AFTER STATUTORY 1 YEAR PERIOD EXPIRED *  CUSTOMS BROKER CAN’T BE FAULTED JUST BECAUSE EXPORTER’S GST REGISTRATION WAS PREVIOUSLY CANCELLED: CESTAT   *  Supreme Court Dismisses Review Plea Against Delhi HC Ruling Holding Real Operator Behind Fake GST Firms Liable As ‘Taxable Person  *  GST Appeal Can’t Be Rejected Merely Because DRC-07 Was Not Uploaded On Portal: Bombay High Court  

Comments

Print   |    |  Comment

PJ-Case law-2012/13-1563

Whether an rebate appeal dismissed as time barred by Commissioner Appeals without considering merits be preferred to Tribunal?

Case:-DISHA FOODS PVT. LTD. Versus COMMISSIONER OF C. EX., HYDERABAD

Citation:-2013 (291) E.L.T. 61 (Tri. - Bang.)

Brief facts:-The appellant had claimed rebate of central excise duty on goods exported to various countries. The original authority sanc­tioned the claim to the extent of some amount and rejected the balance claim. The party was not aggrieved by rejection of re­bate claim. As regards rejection of rebate claim, they preferred an appeal to the Commissioner (Appeals). There was a delay of four days in the filing of that appeal. The party applied for its condonation on certain grounds. The learned Com­missioner (Appeals) was not impressed with the reasons stated for the delay of the appeal. In the result, the appeal against the order-in-original came to be dismissed as time-barred. The present appeal of the party is directed against the appellate Commissioner's order.

Appellant’s Contention:-The learned counsel for the appellant submits that this appeal was filed as advised by the Commissioner (Appeals) himself. In this connection, he refers to the preamble to the impugned order, which contains the following ad­vice
"Any person aggrieved by this order, may under Section 35B of the Act, read with Rule 6 of the Rules file an appeal to the Customs, Excise & Ser­vice Tax Appellate Tribunal, South Zonal Bench,”  
The learned counsel also explains the circumstances in which the appeal against the order-in-original happened to be delayed by four days. He prays for condo­nation of this delay and remand of the case to the Commissioner (Appeals) for a decision on merits.

Respondent’s Contention:-The learned Superintendent (AR) raises a preliminary objection. He submits that, as the impugned order relates to rebate of duty of excise on goods exported to countries outside India, the appeal is barred by clause (b) of the first proviso to sub-section (1) of Section 35B of the Central Excise Act. It is submitted that the remedy available to the appellant is an application to the Central Government under Section 35EE of the Act (revision by Central Government). Accordingly it is urged that the appeal be dismissed as not maintainable.
 
Reasoning of Judgment:-After hearing both sides & considered the documents submitted by both the parties, it is found that as the impugned order is an order passed by the Commissioner (Appeals) under Section 35A, it needs to be examined as to whether this appeal is barred by clause (b) of the proviso. If the impugned order can be considered as an order relating to a rebate of duty of excise on goods exported to countries outside India, then it has to be held that the appeal is not maintainable before this Appellate Tribunal and that the remedy available to the appellant is to file a revision application with the Central Government under Section 35EE of the Act. Sub-section (1). It is also added that the impugned order in this case did not deal with any rebate claim. In that order, the learned Commissioner (Appeals) was considering whether the delay of four days involved in the filing of appeal by the assessee against the As­sistant Commissioner's order was condonable under Section 35 of the Act. He refused to condone the delay and dismissed the delay condonation application filed by the party. Consequently, the appeal against the Assistant Commis­sioner's order also came to be dismissed as time-barred. The appellate Commis­sioner's order did not even refer to the substantive issue (whether the rejection of rebate claim by the original authority was sustain­able or not). The issue did not figure in the appellate Commissioner's order at all. Therefore, tribunal is of the considered view that the impugned order can neither be considered as an "order relating to rebate of duty of excise on goods exported to any country or territory outside India", nor as an "order of the nature referred to in the first proviso to sub-section (1) of Section 35B of the Act". The impugned order is an order on maintainability of the appeal only inasmuch as the learned Commissioner (Appeals) held the appeal to be time-barred and hence not main­tainable. Such an order, in my considered view, is appealable to this Tribunal under Section 35B(1) of the Act.It is trite law that the legislative intent should be deciphered from a conjoint reading of all the relevant provisions of the statute. The provisions have to be construed in a manner which would advance justice in a given set of facts and not in a manner which leaves the aggrieved party remediless. Bearing this cardinal principle of interpretation in mind, one must look at this case from an­other angle. Section 35C of the Act empowers this Appellate Tribunal to confirm, modify or annul the decision or order appealed against. It also authorizes this Appellate Tribunal to remand the case to the lower authority for good reasons. On the other hand, Section 35EE of the Act does not authorize the Central Gov­ernment to remand any rebate case to the Commissioner (Appeals). On the facts of the present case, this Appellate Tribunal can remand the case to the lower ap­pellate authority for a decision on merits if it is found that the aforesaid delay of four days involved in the filing of appeal before him against the Assistant Com­missioner's order is liable to be condoned. On the other hand, the Central Gov­ernment functioning under Section 35EE of the Act cannot remand the case to the Commissioner (Appeals) upon identical finding. In other words, on the peculiar facts of this case, the assessee is rendered remediless if this appeal is dismissed as not maintainable. In the result, the preliminary objection raised by the learned Superin­tendent (AR) stands overruled. This appeal is maintainable inasmuch as the ap­pellant has not raised any contention in relation to the rebate claim and has only raised grounds for condonation of the aforesaid delay of the appeal preferred to the Commissioner (Appeals). After carefully considering the grounds of this ap­peal, Tribunal was of the view that the refusal by the Commissioner (Appeals) to condone the above delay is unjust. The delay is liable to be condoned. Therefore, Tribunal set aside the impugned order and allow this appeal by way of remand with a re­quest to the Commissioner (Appeals) to pass a speaking order on the substantive issue after condoning the above delay and giving the party a reasonable oppor­tunity of being personally heard on the said issue.
 
Decision:-Appeal Allowed.

Comment:-The analogy drawn from this case is that although the appeal for rebate claim lies to the revisionary authority after the dismissal of appeal by the first appellate authority, i.e., Commissioner Appeals, but in the present case the appeal filed to the Commissioner Appeals by the appellant was rejected on account of delay of 4 days in filing the appeal without even considering the merits of the case. In such circumstances, it was concluded that the appeal against the order rejecting the condonation of delay in filing the appeal was maintainable to the Tribunal.  

Department News


Query

 
PRADEEP JAIN, F.C.A.

Head Office : -

Address :
"SUGYAN", H - 29, SHASTRI NAGAR, JODHPUR (RAJ.) - 342003

Phone No. :
0291 - 2439496, 0291 - 3258496

Mobile No. :
09314722236

Fax No. :0291 - 2439496


Branch Office : -

Address:
1008, 10th FLOOR, SUKH SAGAR COMPLEX,
NEAR FORTUNE LANDMARK HOTEL, USMANPURA,
ASHRAM ROAD, AHMEDABAD-380013

Phone No. :
079-32999496, 27560043

Mobile No. :
093777659496, 09377649496

E-mail :pradeep@capradeepjain.com