TaxTMI 
TaxTMI 
2024 (8) TMI 853
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....led an appeal with the Commissioner of GST and Central Tax (Appeals)-II. Subsequently, vide Acknowledgment cum Deficiency Memo dated 18.03.2024, the Superintendent-Registry of Appeals- II Commissionerate informed him that they had wrongly filed their appeal under service tax under Section 35F of the Central Excise Act (as made applicable to service tax) and asked them to file appeal under Section 107 of the CGST Act 2017 and TGST Act 2017. The appellant are in appeal against this letter before this Tribunal. 3. Learned Advocate for the appellant has relied on certain judgments in support of his claim that the appeal can be entertained by this Tribunal. In the facts of the case, he has relied on the Interim Order No. 40021/2023 of Larger Bench in the case of M/s Bosch Electrical Drive India Pvt Ltd., Vs Commissioner of Central Tax, wherein, interalia, the Tribunal had held that an appeal would lie to the Customs, Excise and Service Tax Appellate Tribunal against the order passed under Section 142 of the Central Goods and Service Tax Act 2017. Learned Advocate invites attention to the para 44 in particular in support of that his submission that by virtue of this observation of the L....
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....rounds of maintainability itself. 7. Heard both the sides and perused the records. 8. In this case, before the matter is taken up on merit as regards admissibility of refund or transfer of credit etc., under relevant provisions of GST laws read with existing law in the facts of the case, the issue which needs to be determined first is whether the appeal filed by the appellant is maintainable before this Tribunal or otherwise. There is no dispute that the appellants have come in appeal against this letter dated 18.03.2024, which they have referred to as Order-in-Appeal No. Nil in their appeal memorandum. On going through the said letter it is observed that this is a communication in the form of "Acknowledgment Cum Deficiency Memo" from Superintendent-Registry, Appeals-II Commissionerate, Hyderabad. For the ease of reference the letter dated 18.03.2024 is reproduced below : A perusal of the aforesaid letter would indicate that on scrutiny of the appeal filed against the Order-in-Original dated 12.01.2022, the Superintendent- Registry has pointed out deficiency and also indicated the appellant to file the appeal under Section 107 of CGST Act 2017 and TGST Act 2017. Therefore....
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...., Excise & Service Tax Tribunal against any order passed under Section 142 of the CGST Act 2017 or otherwise and they held that it would lie before the CESTAT. This in any case is not disputed by the Revenue that any order passed under Section 142 cannot be appealed before the Tribunal CESTAT, however, merely because an appeal under Section 142 is maintainable before Tribunal, it does not override the provisions of Section 35B(1)(b) where the Tribunal can only entertain the categories of appeals covered within the ambit of Section 35B. In the instant case, this appeal is not falling under any of the categories and specifically under Section 35B(1)(b) as relied by the appellant. Thus, even though the dispute under Section 142 is maintainable before the CESTAT, since there is no order or decision passed by either Principal Commissioner of Central Excise or Commissioner of Central Excise as an Adjudicating Authority or an order passed by the Commissioner (Appeals) under Section 35A and therefore the appeal is not maintainable in view of statutory provisions before the Tribunal. It is also to be noted that original order passed in terms of, interalia, Section 140 & 142 of CEGST Act 201....
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.... the authorities under the Act are. Nor can there be any question of the High Court clothing the authorities with its power under Article 226 or the power of a civil court. No such delegation or conferment can ever be conceived. We are, therefore, of the opinion that the direction contained in clause (3) of the impugned order is unsustainable in law." In the case of IOCL Vs UOI [2012 (281) ELT 209 (Guj)] Hon'ble High Court held as follows: "With respect to the question of limitation, we have by a separate order passed in the case of this very petitioner in Special Civil Application No. 12072 of 2011 held against the petitioner making following observations : "We are unable to uphold the contention that such period of limitation was only procedural requirement and therefore could be extended upon showing sufficient cause for not filing the claim earlier. To begin with, the provisions of Section 11B itself are sufficiently clear. Sub-section (1) of Section 11E, as already noted, provides that any person claiming refund of any duty of excise may make an application for refund of such duty before the expiry of one year from the relevant date. Remedy to claim refund of duty which....