COMMISSIONER OF CENTRAL EXCISE AND ST, LARGE TAXPAYER UNIT, BANGALORE Vs. DELL INTERNATIONAL SERVICES INDIA PRIVATE LIMITED

JUDGEMENT

(1.) The Revenue has preferred these appeals challenging the order passed by the Tribunal holding that a second review is not possible and thereby upholding the order passed by the Commissioner. The assessee claimed refund in terms of GOI Notification 12/2005 ST April 19, 2005. The said claim was rejected on the ground that he has not complied with the legal requirement. Aggrieved by the said order the assessee preferred an appeal contending that he has satisfied all the conditions of the said notification to make him eligible for rebate sanction. The appellate authority set aside the order-in-original directing the assessee to prefer a claim with the jurisdictional Assistant/Deputy Commissioner of Central Excise. Accordingly he preferred and processed the claim for sanction in accordance with law. Against the said order, the assessee preferred an appeal to the Tribunal. The Tribunal allowed the appeal by remanding the matter back to the Commissioner (Appeals) for a denovo decision on merits within three months. Thereafter, the Commissioner heard the matter and passed an order on January 31, 2008 by setting aside the order passed by the adjudicating authority and held that the assessee is rightly eligible for the grant of rebate of taxes paid on eligible input services which do fall within the definition of "input services" used for providing output services exported. He directed the original authority to work out his rebate in respect of the eligible input services/inputs and allow the same as rebate under the provisions of the Export Service Rules, 2005. The said order was received by the Committee of Commissioners on March 4, 2008 and after going through the order, they decided to accept the same on May 29, 2008. Therefore they did not object to the order and directed preferring of an appeal against the said order. The Chief Commissioner, on his own, felt that the acceptance of the order by the Committee of Commissioners is not proper in view of the fact that the issue was pending before the Tribunal in ST/115/2008. Consequent to the decision of the Chief Commissioner a second review was undertaken by the Committee of Commissioners on July 31, 2008. In the second review there was a difference of opinion between the Commissioners. Thereafter the Chief Commissioner decided to file an appeal before the Tribunal on August 13, 2008. Accordingly, the appeal was filed on August 20, 2008. There was a delay of 78 days in preferring the appeal. Therefore an application for condoning the delay was also filed along with the memorandum of appeal. In the appeal before the Tribunal the assessee contended that once the Review Committee of Commissioners decided to accept the order the matter ends there. There is no legal provision of law enabling them to sit in judgment over the decision of the Review Committee and therefore the present appeal filed is not maintainable. The Tribunal took note of the judgment of the Tribunal in the case of Commissioner of Customs, Tuticorin v. Madura Coats Pvt. Ltd.,2007 216 ELT 86 (Tri.-Chennai) where at para 21 it is held as under :

(2.) Following the aforesaid judgment the Tribunal held that the second review is not possible and therefore it dismissed the appeal. Aggrieved by the said order the Revenue is in appeal.

(3.) The learned counsel appearing for the Revenue assailing the impugned order contends that there is no prohibition in law for the members of the review committee to review the decision taken by them earlier. The decision taken by them at the second review is valid and as there was difference of opinion among the Members at the time of second review the Chief Commissioner has jurisdiction to take a decision to prefer an appeal and therefore the appeal preferred is legal and valid and therefore he submits that the Tribunal was not justified in dismissing the appeal as not maintainable.