ORDER
Jyoti Balasundaram, Vice-President
1. The issue for determination in the present appeal is whether it is open to an assessee to file cross-objections in a Revenue’s appeal, before Commissioner (Appeals).
2. The brief facts of the case are that vide order dated 1-10-1999, the Assistant Commissioner of Central Excise, while sanctioning refund of a little over Rs. 52.00 lakhs to the appellants herein, adjusted an amount of Rs. 13.50 lakhs approximately towards Modvat credit utilised by the appellants on exempted final product and held that the appellants were entitled to refund of only approximately Rs. 39.49 lakhs. By another order dated 22-3-2000, the appellants’ claim for refund of Rs. 40,56,766/- was rejected in toto. Against both orders, the assessees filed appeals before the Commissioner (Appeals) who vide his order dated 31-8-2000, remanded the cases to the lower authority, holding as under:
6. I have carefully considered the submissions of the appellants in respect of both the Appeals No. 18/2000 and 96/2000 the issue being the same and the appellants being the same, I take up both the appeals together for decision as requested by the appellants’ consultant. In respect of adjudication Order No. 156/99 dated 30-11-99,1 agree with the appellants that the lower authority, after sanctioning the refund of Rs. 52,99,787/-, has at the same time ordered for adjusting the Modvat credit amount of Rs. 13,50,585/- without giving any detailed reasons thereof. It has been claimed by the appellants that the entire amount of Rs. 52,99,787/- was paid through PLA. Further, the case laws cited by the appellants also support the appellants’ contention that the amount of demand which is not raised and for which no show cause notice is issued cannot be adjusted against the amount of sanctioned refund claim.
7. In respect of the second Appeal No. 96/2000, I observe that sufficient opportunity was not given to the appellants to present their case as is evident from the fact that the personal hearing was held on the same day of issue of the show cause notice. Such occasions do sometimes arise in respect of Customs cases where goods are under detention but in a Central Excise case like the present one, such haste could have been avoided and the appellants would have got better opportunity to present their case. In fact I find that all the arguments presented by the appellants have not been dealt with at the original stage. Further, there is sufficient force in the appellants’ submissions that the amount of Rs. 13,50,585/- deducted from the sanctioned refund amount vide order dated 30-11-99 should have been taken up for consideration in respect of the refund claim for duty paid through RG23A account which is the subject matter of the second Appeal No. 96/2000.
3. After the above direction, the matter was taken up afresh by the Assistant Commissioner who, vide his order dated 31-1-2001, sanctioned refund of Rs. 4,23,739/- out of the total claim amount of Rs. 13,50,585/- for duty paid in the PLA and also adjusted the assessees’ claim for refund of Rs. 40,56,766/- in the Modvat account itself. The Revenue filed an appeal before the Commissioner (Appeals) against the sanction of refund of Rs. 4,23,739/- which appeal was disposed of by the Commissioner (Appeals) vide order dated 21-10-2003, rejecting the same. The Commissioner (Appeals) rejected the cross-objections filed by the assessees before him on the ground that there was no provision in the Act for an assessee to file cross-objections before the lower appellate authority, going by the language of Section 35E(4) and Section 35B(4). Hence this appeal by the assessees.
4. I have heard both sides.
5. Section 35E reads as under:
(2) The Commissioner of Central Excise may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct such authority to apply to the Commissioner (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Commissioner of Central Excise in his order.
(4) Where in pursuance of an order under Sub-section (1) or Sub-section (2) the adjudicating authority or the authorised officer makes an application to the Appellate Tribunal or the Commissioner (Appeals) within a period of three months from the date of communication of the order under Sub-section (1) or Sub-section (2) to the adjudicating authority, such application shall be heard by the ‘Appellate Tribunal’ or the Commissioner (Appeals), as the case may be, as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals, including the provisions of Sub-section (4) of Section 35B shall, so far as may be, apply to such application.
Section 3513(4) provides that “On receipt of notice that appeal has been preferred 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 45 days of the receipt of the notice, 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) of Section 35B.” Section 35B(4) of the Central Excise Act is therefore applicable to appeals filed before the Tribunal and does not apply to appeals filed before Commissioner (Appeals). The CEGAT Procedure Rules 15 and 15A also provide specifically for filing of memorandum of cross objection before the Tribunal, which is to be treated as an appeal. No similar provisions exist under the Central Excise (Appeals) Rules, 2001. Therefore, there is no legal provision providing for filing of cross-objection before Commissioner (Appeals). I therefore find no reason to interfere with the finding of the Commissioner (Appeals) that the memorandum of cross-objections before him is not maintainable in law and accordingly dismiss the appeal.
(Pronounced in Court)