TaxTMI 
TaxTMI 
2014 (4) TMI 884
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....t) precluded an appeal under Section 86, and that the remedy available to the assessee was a revision to the Central Government. 3. The reasoning which persuaded the Tribunal to conclude that the appellate remedy under Section 86 was barred, is extracted below : "18. When the provision of Section 35EE was consciously incorporated into Section 83 of Finance Act, 1944 by legislature, they intended that the object of the said Section is not expected to be defeated by Section 86 of Finance Act, 1994. As we have said earlier that legislature did not intend to make repetition of the law and procedure relating to various subjects incorporated in different sections of Central Excise Act, 1944 referred to in Section 83 of the Finance Act 1994, adoption of relevant applicable provisions of that Act has been made in Finance Act, 1944 to govern the administration of service tax law. Further, when section 35EE of Central Excise Act, 1994 was incorporated into section 83, that cannot be read as redundant or otiose and implementation of section 86 of Finance Act, 1994, cannot be independent of Section 83 of the Act. Legislature have not curtailed or abridged the substantive right of revisio....
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....icance for our consideration and plea of judicial insistency is baseless." 4. Mr. Mittal, learned counsel for the assessee contends that the impugned order is plainly erroneous, arguing that a specific inclusion of the Section 35EE by way of amendment to Section 83 (of the Finance Act) did not in any manner alter the width of the appellate remedy under Section 86. Learned counsel emphasised upon the expression "so far as maybe" under Section 83 and stated that the reference to various provisions - contained under Section 83 merely was meant to borrow the mechanism of the Central Excise Act since no independent enforcement mechanism of the Finance Act 1994 was enacted by Parliament. It was contended that for the entire period between 1994 - (when service tax liability was created for the first time), and 2012, all parties understood that all orders and decisions which assessees were aggrieved, could be appealed under Section 86. The change- by the impugned amendment was only meant for emphasising the fact that even matters covered under that provision by the Central Excise Act could be gone into by the concerned authority which in this case undoubtedly was the CESTAT. Learned cou....
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....al has not been preferred before such commencement and could have been, if the said section had not come into force, preferred after such commencement, to the Appellate Tribunal. (1A) 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. (2) An application under sub-section (1) shall be made within three months from the date of the communication to the applicant of the order against which the application is being made : Provided that the Central Government may, if it is satisfied that the applicant was prevented by sufficient cause from presenting the application within the aforesaid period of three months, allow it to be presented within a further period of three months. (3) An application under sub-section (1) shall be in such form and shall be verified in such manner as may be specified by rules made in this behalf and shall be accompanied by a fee of - (a) two hundred rupees, where the amount of duty and interest demanded, fine or penalty levied b....
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.... a factory to a warehouse or to another factory, or from one warehouse to another, or during the course of processing of the goods in a warehouse or in storage, whether in a factory or in a warehouse. (b) 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. (c) goods exported outside India (except to Nepal or Bhutan) without payment of duty (d) credit of any duty allowed to be utilized towards payment of excise duty on final products under the provisions of this Act or the rules made thereunder and such order is passed by the Commissioner (Appeals) on or after the date appointed under Section 109 of the Finance Act (No.2) Act, 1998. 9. It may be seen that Parliament always intended that an appellate remedy should be available in respect of refund and rebate claims. That power was exercisable by the CESTAT. The amendment of Section 83, in 2012 did not disturb the appellate remedy, i.e Section 86; the amendment did not limit the appellate power in any manner whatsoever. It is a settled position of law that exclusion of ....