Department cannot file Revise Application in terms of Section 35EE of excise

Commissioner of Service Tax Vs Mail Order Solutions (I) Ltd. (CESTAT Mumbai)

The case stems from a series of appeals filed by the Revenue department, seeking a review of an earlier decision. The bone of contention was the applicability of Section 35EE of the Excise Act, and Section 86 of the Finance Act, 1994, concerning the rights of the Revenue to file an appeal. The court, after examining the case records and the statutes, established that only the assessee is permitted to file a Revision Application under Section 35EE, thus limiting the scope of the Revenue department.

FULL TEXT OF THE CESTAT MUMBAI ORDER

Heard both sides and examined the case records.

2. The applicant has filed these miscellaneous applications, seeking for recall/ review of the order No. A/1854-1865/2015-STD dated 24.06.2015 passed by the Tribunal. The reason for filing these miscellaneous applications is that in terms of sub-section (2A) of Section 86 of the Finance Act, 1994, Revenue has been permitted under the statute to file appeal before the Tribunal in respect of the order passed by the Commissioner (Appeals). In other words, it has been contended by the applicant that it is assessee alone, who can assail the impugned order passed by the Commissioner (Appeals) in respect of the issues concerning rebate of duty on exportation of goods before the revisionary authority, instead of filing appeal before the Tribunal. The applicant has also stated that the order dated 24.06.2015 of the Tribunal was questioned before the Hon’ble Bombay High Court in the Writ Petition filed in the year 2021. The question raised in those Writ Petition was to the effect that whether the order of the Tribunal is maintainable on the ground of jurisdiction. On perusal of the order dated 22.02.2023 passed by the Hon’ble Bombay High Court, we find that the Hon’ble Court were pleased to dispose of the writ petition, by permitting the applicant to file application before the Tribunal for recall/review of the impugned order.

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