JUDGMENT
S.L. Peeran
1. This is a revenue appeal seeking to set aside the order-in-appeal No. 132/97 (M) dated 19.8.97 by which the rebate claim of the appellant with regard to the export made by them was held to be admissible. The Commissioner (Appeals) has noted that rebate claim was filed at Delhi MODI) office by mistake and not in the office of Martime Collector as on 29.12.94. These papers were returned to the assessee in a covering letter vide dated 5.1.95. They re-filed their claim of refund of rebate in the jurisdictional AC’s office on 22.12.1994. The lower authority by their order-in-original rejected their claim on the ground that it is barred by limitation as the date of export in A.R. 4A No. 1/94-95 (132/94-95) and 2/94-95 (133/94-95) were both dated 1.7.95 and the claim had been filed initially within time on 22.12.94. However, the said claim was returned to them and they did not file immediately before the jurisdictional AC and refiled after lapse of time on 17.8.95. Ld. AC took a view that the claim should have been filed within 6 months from the date of export in A.R. 4A dated 1.7.95. However on appeal by the assessee the Ld. Commissioner reconsidered the issue and noted that the original claim had been filed within time before the Martime Collector at Delhi. However they re-filed the claim subsequently which is of not much consequence. He upheld their claim and directed the lower authority to decide the issue on merits. Against this order the revenue has come up in appeal when the matter came up for consideration on 2.11.2001. Ld. Chartered Accountant appearing for respondent took a preliminary objection that the appeal is not maintainable before the Tribunal in terms of proviso under Section 35B which clearly lays down that no appeal shall come up before the Tribunal and the Tribunal shall not have the jurisdiction to decide any appeal in respect of order referred to in clause (b) (order passed by Commissioner (Appeals) under Section 35A). If such order relates to “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”. He also relied on the Larger Bench judgments rendered in the case of India Jute & Industries Ltd. v. CCE as reported in 1991 (54) ELT 235 wherein the Larger Bench of 5 Members took up this very issue as to whether the Tribunal has got jurisdiction to consider the claim of rebate arising under Rule 12 to 14A of CE Rules. The Tribunal after due consideration applying proviso to Section 35B held that it has no jurisdiction to deal with the matter pertaining to rebate claim. In view of the submission LD. SDR was called upon to get a reply claim. In view of the submission Ld. SDR was called upon to get a reply from the Commissioner’s office of Central Excise, Chennai-III.
2. Ld. Addl. Commissioner (Judicial) vide his letter dated 12.11.2001 has replied to Ld.SDR. A copy of the letter is filed in the court which is reproduced as follows:
“Subject: C.E. – Appeal filed by the Department against Order-in-Appeal No. 132/97 dated 19.8.97 of Commissioner (A), Chennai-M/s. Kiwi TTK Ltd. – Reg.
Please refer to your letter dated 2.11.2001 calling for the comments of Commissioner on the maintainability of this department appeal before the Hon’ble CEGAT.
The main issue for decision before the Hon’ble CEGAT is with reference to the question of ‘time bar’ and not the admissibility or otherwise of the rebate claim of the assessee. As per proviso (b) to Sub-section (1) of Section 35B, appeal relating to rebate of duty on goods exported or on the materials used in the manufacture of goods which are exported are not maintainable. In this case the assessees have submitted the rebate claim beyond the time limit of 6 months prescribed by the statute. Commissioner (A) has treated the belated submissions as a technical offence vide above order-in-appeal. Department is aggrieved by his decision as he is also bound by the limitation period provided under Section 11B as has been held by Hon’ble Apex Court. The Department has prayed to set aside the order of Commissioner
(A) only on the question of time bar. As the CEGAT has locus standi to decide the issue of limitation under Section 11B, it is kindly requested to appraise the Hon’ble CEGAT to give their decision on this departmental appeal.”
3. Ld. SDR pleaded that the issue pertaining to time bar and no with regard to eligibility of rebate claim and therefore the matter can be taken up by the Tribunal as submitted by the Addl. Commissioner (Judicial) in his letter dated 12.11.2001.
4. Ld. Chartered Accountant relied on the proviso of the law and the judgment of the Larger Bench judgment supra.
5. On a careful consideration of the submission we are of the considered opinion that proviso to Section 35B oust the jurisdiction of the Tribunal to deal with claims pertaining to rebate which are required to be decided in terms of Rule 12 to 14A of the CE Rules. The aspect pertaining to filing of claim, its eligibility and the right of the party to claim falls within the ambit of substantive law. Procedural law lays down the time limit and jurisdiction before whom it has to be filed nad Claims decided. Therefore the generic issue pertains to the rebate claim and its species i.e. is time bar nad procedure to file the claim. Therefore, Ld. SDR’s plea that the rebate claim pertaining to time bar can be decided by the Tribunal is not correct in terms of proviso to Section 35B nad the judgment rendered by the Larger Bench as cited by Ld. Chartered Accountant. The findings recorded in para 32 to 34 is reproduced herein below:
32. From the reading of the facts of the case in Appeals No. 15/87 and 16/87, it follows that he matter pertains to demand of duty for clearance by export of jute falling under erstwhile Tariff Item 22A without payment of cess duty as payable in terms of Sub-section (1) of Section 3 of the Cess Act read with Rule 9(1) of the Central Excise Rules. The appellants have contended that removal for export of jute goods without payment of Central Excise duty under Section B-1 duty is provided for under Rules 12 and 13 of Central Excise Rules, 1944 and the notification issued thereunder. The lower authorities have held in the impugned order that the contention of the assessee that the export of jute without payment of cess duty in view of the provisions of Rules 12 and 13 of Central Excise Rules, 1944 and cess is not correct. The lower authorities have held that in accordance with provisions of revised Cess Rules, 1984 cess on jute manufactures is leviable and payable on final finished products cleared from the factory on sale either within the factory or abroad. Therefore, in order to decide the contention of the assessee in these two appeals, the relevant notifications granting exemption from payment of duty under the Bond have to be gone into. The levy of duty under the relevant notifications under Rule 12 of Central Excise Rules, 1944 is a matter pertaining to determination of the question of rate of duty; although there is no dispute of classification in these two appeals, yet the determination of the question will have effect on the rate of duty. The matters pertaining to interpretation of notification for levy of duty or cess on goods exported under Bond has all along been dealt with by the Special Benches as can be seen from the case law discussed above. This has been the view expressed in the case of Malwa Vanaspati and Chemicals Col Ltd. as reported in 1983(13) ELT 1004. All cases requiring interpretation of Rule 12 of 14A of Central Excise Rules, 1944 have come up before Special Benches in view of the questions coming up for determination of duty with reference to an exemption or concession notification which would necessarily affect the rate of duty. However, by Section 47 of Finance Act, 1984, Section 35B pertaining to appeals to Tribunal was amended by adding a proviso. The First proviso to Section 35B has taken away the jurisdiction of the Appellate Tribunal to decide any appeal pertaining to rebate of duty on excise of 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. The rebate of duty of excise on goods exported to any country is granted by issue of Notification under Rules 12, 12A and 13 of the Central Excise Rules. In view of the amendment by which the jurisdiction of the Tribunal has been taken away, these appeals No. 15/87 and 16/87 may not lie within the ambit of jurisdiction of appellate Tribunal.
33. In Appeal No. 69/87-ERB and Appeal No. 77/84-ERB, the assessees have preferred refund claim against their payment of cess on jute yarn captively consumed for manufacture of jute goods under TI 22-A and TI 18-D of erstwhile CET. The assessees have taken a ground that they have paid such duty against confirmation of demanded (SIC) by way of cash payment or covered by way of bank guarantee with a presumption that the said amount is refundable to them in view of Board’s letter under TRM No. 1079 to 1081 dated 30-1-1986 as received by the Superintendent, Central Excise, Range VI, Calcutta. Similar questions as involved in these appeals have been dealt with by Special Bench as in the case of Mahabir Jute Mills Ltd. as reported in 1984 (16) ELT 477. As contended by the learned department Representative Shri L.C. Chakraborty, the question of leviability, excisability, marketability and rate of duty will also come up while interpreting captive consumption of jute products in the manufacture of finished jute good. Even interpretation of notification and results flowing therefrom will have an effect on the cess and rate of duty. The valuation of goods captively consumed may also finished goods. There may be questions requiring determination regarding the quantum of clearances in a financial year and the rate of duty leviable thereon. The matters pertaining to interpretation of Notification No. 201/79 which deals with captive consumption have been held to come within the ambit of Special Bench as held in the case of Kashmir Vanaspati as reported in 1987 (29) ELT 208. Therefore, we are of the view that appeals No. 69/87-ERB and No. 77/84-ERB are also to be heard and decided by a Special Bench as per Sub-section 35-D of the C. Ex. and Salt Act, 1944.
We answer the reference accordingly.
34. [Assent per: K.S. Venkataramani, Member (T)]. – I am in general agreement with the order of Ld. Brother, Sh. Peeran. However, it may be noted that the question of jurisdiction in the matter will have to be decided also having regard to the first proviso to Section 35B which says that no appeal from a Collector (Appeals)’s order shall lie to the Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal relating to rebate of excise duty on exported goods, or of excisable material used in the manufacture of exported goods, (Rule 12 & 12A of Central Excise Rules), and to goods exported outside India (except to Nepal or Bhutan) under Bond (Rule 13 Central Excise Rules). This provision barring Tribunal’s jurisdiction came into effect with the enactment of Finance Act 1984, on 11-5-1984. Therefore, where the appeal from an order of the Collector (Appeals) turns on the interpretation of 12, 12A and 13 of the Central Excise Rules and the Notifications thereunder relating to excise rebate on excisable goods or relating to export under Bond without payment of duty under Rule 13 after 11-5-1984, in my view, neither the Special Bench nor the Regional Bench will have jurisdiction because by the amendment to Section 35B by the Finance Act 1984, the jurisdiction in such matters has been vested in the Govt. of India under Section 35EE.
6. We are of the considered opinion that the claim of the respondent is that the rebate claim arising from export is to be determined under Rules 12 to 14A of CE Rules and therefore the time limit for filing the application for rebate filed will fall within this ambit only. As the Tribunal cannot take up the main substantive issue as it does not come within this ambit, therefore, Ld. SDR’s plea to take up the issue of time bare arising from rebate claim cannot be entertained. Ld. Chartered Accountant’s submission that the Tribunal has no jurisdiction to deal with the issue pertaining to rebate claim and the time bar issue of rebate claim is upheld. Hence the preliminary objection raised by the Chartered Accountant is upheld and the appeal is dismissed for want of jurisdiction.
(Dictated and pronounced in open Court)