TaxTMI 
TaxTMI 
2020 (10) TMI 532
X X X X Extracts X X X X
X X X X Extracts X X X X
....02.03.2020 in the case of CCE Rohtak vs. Som Flavour Masala Pvt. Ltd. is squarely covered the issue in hand the appeal filed by the revenue was allowed wherein the interest to be paid was about Rs. 5.5 Crores approximately. The said application was disposed off by the senior member of this Tribunal observing that the reasons explained in the application for urgent hearing are not found satisfactorily as per the said Public Notice No. 1 wherein only urgent application could have been disposed off, but in the application filed by the Revenue, the requestwas for dispose off the appeal, therefore, it was decided the matter cannot be heard virtually at that point of time. Thereafter, in terms of Public Notice No. 2 dated 10.08.2020, the Respondent made a request for early hearing of the appeal on 24.09.2020. Therefore, the matter was fixed for hearing on 29.09.2020. The Revenue took the preliminary objection that in terms of Public Notice No. 2 dated 10.08.2020 the request of E-hearing can be made by the appellant only and sought clarification on this point so that department can also proceeds similarly. Further, another objection was raised by the Revenue-Appellant that in view of Sect....
X X X X Extracts X X X X
X X X X Extracts X X X X
....of deposit of the duty till passing of the order by the Appellate Authority, the issue is determination of the date from when the interest is to be granted. The Appellant humbly prays that the instant appeal was filed by the appellant in January, 2020 alongwith stay application which could not be taken up by the Hon'ble bench due to COVID-19 Pandemic and in the meantime in terms of Public Notice no.1 an application dated 14.07.2020 in Annexure I was filed by the appellant for urgent hearing on the ground that the amount of interest involved is more than crore. ii. The Appellant humbly wish to submit that as per our view, it appears that jurisdiction to decide such cases or to list the matter before itself or transfer the case before the Hon'ble Single Member Bench as deemed fit, lies with the Hon'ble Division Bench. Therefore, prima facie the present case seems to be wrongly listed before the Hon'ble Single Member Bench. The main appeal in the matter was heard by Hon'ble Division Bench Hence, the claim of interest also lies with the hon'ble Division Bench. iii. It is humbly submitted that in a similar matter in Appeal No. E/61049/2019 vide final order no 60385/202....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nd of duty presently is Rs. 14,97,508 - Considering Section 35D of Central Excise Act, 1944, Single Member could not have disposed off claim without jurisdiction - Matter remanded to Tribunal for fresh consideration by Bench consisting of minimum two Member for decision within three months - Section 35D ibid. [para 2] 3. Also in the case of COMMISSIONER, CGST AND CENTRAL EXCISE Versus DEEP CONSTRUCTION CO. 2019 (365) E.L.T. 37 (Guj.). it was held: Appellate Tribunal - Single Member Bench's jurisdiction - Member sitting singly can decide matter only if amount of fine or penalty involved does not exceed fifty lakh rupees - Valuation of penalty under dispute more than Rs. 50 lakhs - Order passed by single member of Tribunal without jurisdiction and set aside - Matter remanded to be heard by Division Bench of the Tribunal - Section 35D(3) of Central Excise Act, 1944. [paras 2, 3] Here in the case of Reva Electric car (Supra) the Hon'ble Bench has included the word interest also alongwith fine and penalty. Thus where the amount of interest exceeds Rs. 50 lakhs, the jurisdiction lies with Division Bench. The jurisdiction to hear the case of the value a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....has to be read as it is and no words can be added or deleted in interpreting the Act. The Hon'ble Supreme Court in the case of Commercial Taxes Officer vs Bombay Machinery Store 2020 (36) G.S.T.L. 161 (S.C.) held that Interpretation of statutes - Tax Administration cannot interpret legislative provisions based on their own perception of trade practice - They cannot supply words to legislative provisions to cure omissions of legislature - If they felt assessee/dealer was taking unintended benefit of legislative provisions, proper course would be legislative amendment. [para 15] If it was the intention of the Legislature to impose monetary jurisdiction of Single Member for Refund cases, it would be expressly mentioned in the Act. The absence of the word "Refund" with duty/ penalty/fine in Section 35 D indicates the intention of the legislature to give the single member bench the jurisdiction to decide Refund cases of any amount. 2) Section 11 B prescribes the Central Excise officer having jurisdiction to deal with Refund claims. SECTION Claim for refund of [duty and interest, if any, paid on such duty] [11B..- (1) Any person claim....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Department, or any person (including an officer of the State Government) invested by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) with any of the powers of a Central Excise Officer under this Act.] CENTRAL EXCISE RULES RULE 3. Officers. - Appointment and jurisdiction of Central Excise (1) The Board may, by notification, appoint such person as it thinks fit to be Central Excise Officer to exercise all or any of the powers conferred by or under the Act and these rules. (2) The Board may, by notification, specify the jurisdiction of a [Principal Chief Commissioner of Central Excise or Chief Commissioner of Central Excise, as the case may be], [Principal Commissioner of Central Excise or Commissioner of Central Excise, as the case may be] or Commissioner of Central Excise (Appeals) for the purposes of the Act and the rules made thereunder. (3) Any Central Excise Officer may exercise the powers and discharge the duties conferred or imposed by or under the Act or these rules on any other Central Excise Officer who is subordinate to him. Jurisdiction of the Central Excise Officer....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2. Deputy/Assistant Commissioner Above Rs. 10 lakh but not exceeding Rs. 50 lakh 3. Superintendent Not exceeding Rs. 10 lakh (iii) In case different show cause notices have been issued on the same issue answerable to different adjudicating authorities, Show Cause Notices involving the same issue shall be adjudicated by the adjudicating authority competent to decide the case involving the highest amount of duty. (iv) Every adjudicating authority of Central Excise and Service Tax in the field shall endeavour to adjudicate 100 cases in a year. The Deputy Commissioner's jurisdiction to adjudicate cases of duty is restricted to 50 Lakhs, whereas his jurisdiction to adjudicate cases of Refund is unrestricted to any upper ceiling. The intention of the legislature is that refund cases have to be dealt with in the manner in which cases of demand of duty etc are dealt with. The single member bench has the jurisdiction to hear the tax cases upto Rs. 50 Lakhs which are adjudicated by the Deputy Commissioner, the single member bench will also have the jurisdiction to hear the Refund cases adjudicated by the Deputy Commissioner. 4) Sing....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e than 50 lakhs. On the other hand there can be instances where the Refund is more than 50 lakhs, but interest is less than 50 lakhs. There is no monetary jurisdiction of the Single member for Refunds, therefore irrespective of the quantum of interest, Single member has the jurisdiction to hear all cases of Interest on Refund 7) Double Member bench not barred from hearing cases where Single Member Bench has jurisdiction. Hearing of the Refund claim byDB does not take away the jurisdiction of Single Member to hear the Appeal on interest on Refund The DB of Tribunal is not an Appellate Authority to a Single Member bench decision. SECTION 35D.(3) states that The President or any other member (3) of the Appellate Tribunal authorised in this behalf by the President may, sitting singly, dispose of any case which has been allotted to the Bench of which he is a member where - The word "may" in Section 35 means that it is not mandatory that a Single Member bench hears the cases whose jurisdiction is conferred in it in Section 35 D. All cases, irrespective of any issue can be heard by a DB if it is allotted to DB. Rule 9 (3) & (4) of the ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Delhi 2019 (366) E.L.T. 305 (Tri. - Del.) Therefore the decision of Karnataka High Court has no precedent value. 10. I have gone through the written submissions filed by both sides. Section 35D (3) of Central Excise Act, 1944 restricts the powers of Single Member Bench of this Tribunal to hear the cases where the dispute is other than determination of any question having a relation to rate of excise duty or value of goods for the purpose of assessment is in issue or the fine or penalty involved does not exist Rs. 50 Lakhs which means a case where the case is determination of any issue in relation to the rate of the duty and valuation of the goods or differential duty, fine or penalty involved are more than Rs. 50 Lakhs, the Single Member Bench of this Tribunal have no jurisdiction to deal the issue. 11. The Revenue has heavily relied on the decision of the Hon'ble Karnataka High Court in the case of Reva Electric Car Pvt. Ltd. (supra) wherein the fact of the case were that the claim of refund of Cenvet credit was filed under Rule 5 of Cenvet Credit Rules read with Notification No. 11/2002-NT dated 01.03.2002 and the amount was Rs. 14,97,508/-. The said refund claim was di....
X X X X Extracts X X X X
X X X X Extracts X X X X
....aid case also dispute was not with regard to issue of interest. It is settled law that the provision of Section 35D (3) of the Act has to be dealt as it is and no word can be edited or deleted while interpreting the said provision. The Hon'ble Apex Court in the case of Commercial Taxes Officer vs. Bombay Machinery Store (Supra) held that "we are of the view that interpretation of the Division Bench of Delhi High Court given the case of Arjan Dass Gupta does not lays down correct position of law. In the event, the authorities felt any assessee or dealer was taking unintended benefit under the aforesaid provision of the Act, 1956, then proper course would be legislative amendment. The Tax Administration authority cannot give their own interpretation of legislative provisions on the basis of their own perception of trade practice. The administrative exercise, in effect, would result in supplying words to legislative provisions, as if to cure omissions of the legislature. 14. Further, in the case of Ashapura Garment Ltd. (supra) this Tribunal had an occasion wherein the dispute with regard to rejection of Compounding of offences by the Chief Commissioner of Customs wherein th....