Whether a Committee of Commissioners should examine Commissioner (A)'s order relating to Rebate?
WE received this mail from a netizen -
The Commissioner (Appeals) has passed an order concerning Rebate of duty on goods exported out of India.
‘Should such an order be examined for its legality and propriety by the COMMITTEE of Commissioners of Central Excise or ONLY by the jurisdictional Commissioner' was the question doing the rounds in our Commissionerate.
Probably, such questions might have already been answered in other Central Excise formations but at our place, because it was a novelty, discussions were the order of the day.
The first school of thought had this to say on the issue –
++ Since clause (b) of the first proviso to section 35B(1) of the CEA, 1944 makes a specific mention that no appeal shall lie to the Appellate Tribunal and that the Appellate Tribunal shall not have any jurisdiction to decide any appeal in respect of any order passed by the Commissioner (Appeals) concerning rebate of duty of excise on goods exported, there is no reason for reading the further provisions of section 35B, namely sub-section (2) which mentions about the Committee of Commissioners examining the order passed by the Commissioner(Appeals). The fact that cannot be overlooked is that section 35B is captioned “Appeals to the Appellate Tribunal” and not “Appeals to Revisionary authority”.
++ Moreover, section 35EE of the Central Excise Act, 1944 titled ‘Revision by Central Government' in sub-section (1A) makes a clear mention that the Commissioner of Central Excise may, if he is of the opinion that an order passed by the Commissioner (Appeals) under section 35A is not legal or proper, direct the proper officer to make an application on his behalf to the Central Government for revision of such order. Incidentally, sub-section (1) to section 35EE identifies that the ‘order' is of the nature referred to in the first proviso to sub-section (1) of section 35B viz. concerning rebate of duty on goods exported.
++ As such, there ought not to exist any confusion in the matter inasmuch as an order passed by the Commissioner (A) pertaining to rebate of duty is to be examined by the jurisdictional Commissioner of Central Excise and he is to decide as to whether a revision application is to be filed before the Central Government.
Another school of thought had cultivated this view –
++ Section 35EE(1A) of the CEA, 1944 laying down that the Commissioner of Central Excise is required to examine such orders passed by the Commissioner (Appeals) and direct the proper officer to file a revision application was inserted by the Finance Act, 1999;
++ The words “Committee of Commissioners of Central Excise” substituted the words ‘Commissioner of Central Excise' in section 35B(2) of the CEA, 1944 by the Finance Act, 2005 w.e.f 13.05.2005;
++ Incidentally, section 35EE of the CEA, 1944 did not see a similar amendment/substitution of the words “Commissioner of Central Excise” by the “Committee of Commissioners” and which may be due to oversight;
++ The revision of the Commissioner (Appeals) order concerning rebate is done, if required, by the Central Government and the revisionary authority appointed by the Central Government who hears such applications is of the rank of either a Joint Secretary/Secretary or the Revenue Secretary of the Department of Revenue.
++ Obviously, it cannot be that an application to the Central Government can be made by the singular application of mind by the Commissioner of Central Excise whereas for an appeal before the Appellate Tribunal it requires a Committee of Commissioners /Committee of Chief Commissioners as in section 35E(1) of the CEA, 1944.
++ There is no harm if the Committee of Commissioners chooses to employ its wisdom in examining the order passed by the Commissioner (Appeals) even if it concerns rebate of duty.
++ Needless to mention, in those cases where without noting that the order passed by the Commissioner (Appeals) concerned rebate of duty and the Committee of Commissioners had passed a review order and directed the Central Excise officer to file an appeal before to the Appellate Tribunal and the Appellate Tribunal had rejected such appeals as not maintainable, applications have been subsequently made to the Revisionary authority.
As can be seen there was no unanimity as to the recourse to be adopted in the case on hand.
Seeing the commotion, the Commissioner said that there was no need to deliberate more on the subject.
He quipped – “I will mark the file to the second Member of the Committee and he will sign on the dotted line and we can file a revision application. And who is going to object this – neither the party nor the Revisionary authority. After all, two heads are better than one.”
Sage advice, we got and we followed it without any murmur!