CESTAT | It is incumbent on the original authority not to adjudicate the protective notices and wait till the decision of the Revisionary Authority; Tribunal allows appeal

Customs, Excise and Services Tax Appellate Tribunal (CESTAT): S.S. Garg (Judicial Member) allowed appeals which were filed against the impugned order passed by the Commissioner of Central Tax (Appeals) whereby Commissioner had rejected the appeal for not depositing the mandatory pre-deposit under Section 35F.

Appellant had filed four rebate claims before AC Yelahanka Division under Rule 18 of CER 2002 read with Notification No. 19/2004-CE (NT) dated 06/09/2004, as amended read with Section 11B of Central Excise Act, 1944 on the ground that they had manufactured and exported the same as per the documents submitted. The adjudicating authority after due process found that the respondent had paid excess duty from their Cenvat credit account as the duty was paid on CIF value basis and further, re-determined the values as per Section 4 of Central Excise Act and held that duty was paid in excess partly and was not admissible and had re-determined Section 4 value and arrived at the allowable amounts. The Jurisdictional Deputy Commissioner had examined Section 142(3) of the CGST Act, 2017 and allowed the entire rebate claimed by the respondent in cash. The Department filed appeal before the Commissioner (Appeals) on the ground that the Adjudicating Authority has erred in sanctioning the rebate. Further, Commissioner (Appeals) had allowed the appeals in favour of the Department. Aggrieved by the same, the appellant had filed Revision applications. Jurisdictional Assistant Commissioner of Central Tax issued protective show-cause notices and demanded the rebate sanctioned in all the four cases and adjudicated the same as erroneously refunded amount liable for recovery under the provisions of Rule 14 of CCR, 2004 read with Section 11A (1) of CEA, 1944 with applicable interest under the provisions of CCRs 2004 read with Section 11AA of CEA, 1944. Aggrieved by the said order of the Assistant Commissioner, the appellant had filed appeal before the Commissioner who rejected the appeal for not depositing the mandatory pre-deposit under Section 35F of Central Excise Act, 1944 without going into the merits of the case.

The Tribunal after perusal of records found that the appellant had already filed Revision application challenging the decision of the Commissioner (Appeals) whereby the Commissioner (Appeals) had accepted the Department’s appeal and that Revenue has now attached the copy of the notice issued by the Revisionary Authority which shows that the whole issue is pending with the Revisionary Authority, Government of India. Since the issue was pending before the Revisionary Authority, it was incumbent on the original authority not to adjudicate the protective notices issued by them and should have waited till the decision of the Revisionary Authority. The Tribunal allowed the appeals setting aside the impugned order with a direction to keep the whole matter in abeyance till the decision of the Revisionary Authority.[Indo Us Mim Tec (P) Ltd. v. Commr. of Central Tax; 2020 SCC OnLine CESTAT 396    ; decided on 11-12-2020]


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