" (1) Appeal No. C/30278/2024 CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL HYDERABAD REGIONAL BENCH - COURT NO. – I Single Member Bench Service Tax Appeal No. 30278 of 2024 (Arising out of Order-in-Appeal No. Nil, dated 18.03.2024 passed by Commissioner of GST & Central Tax (Appeals-II), Hyderabad) M/s Mordor Intelligence Pvt Ltd., .. APPELLANT Plot No. 30 and 31, 11th Floor, Brigade Towers, Financial District, Nanakramguda, Gachibowli, Hyderabad, Telangana – 500 032. VERSUS Commissioner of Central Tax .. RESPONDENT Hyderabad - GST Kendriya Shulk Bhavan, L.B. Stadium Road, Basheerbagh, Hyderabad, Telangana – 500 004. APPEARANCE: Shri Akhil Gupta, Advocate for the Appellant. Shri B. Sangameshwar Rao, Authorised Representative for the Respondent. CORAM: HON’BLE Mr. A.K. JYOTISHI, MEMBER (TECHNICAL) FINAL ORDER No. A/30351/2024 Date of Hearing:07.08.2024 Date of Decision:14.08.2024 [ORDER PER: A.K. JYOTISHI] M/s Mordor Intelligence Pvt Ltd., (hereinafter referred to as appellant) have filed service tax appeal before this Tribunal against the Order-in-Appeal No. Nil dated 18.03.2024. They have prayed for setting aside of the said impugned Order-in-Appeal No. Nil dated 18.03.2024 amongst other prayers. 2. The issue, in brief, is that the appellant had approached Jurisdictional CGST authorities for transfer / of refund of Cenvat Credit of Rs. 37,80,286/-. On adjudication, the concerned authority rejected their claim vide order dated 12.01.2022. He had examined the claim of the appellant under Section 140 and under Section 142(3) of the CGST Act 2017. Aggrieved (2) Appeal No. C/30278/2024 with the said order, the appellant filed 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 Larger Bench, it is obvious that Commissioner (Appeals) could have entertained their appeal filed under Section 35F by them before the Commissioner (Appeals). 4. He has also relied on the judgment in the case of Gaurav Pharma Ltd., Vs Commissioner of Central Excise & Service Tax, Rohtak, Delhi [2015 (326) ELT 561 (Tri-LB)] in support of his submission that said impugned order dated 18.03.2024 is an interlocutory order and hence maintainable before this Tribunal in view of observations made in para 31, by the Larger Bench holding that the orders passed by the Adjudicating Authority in the facts of the case being contended by Revenue as administrative or interim in nature, are not correct and that the provisions under Section 129A(1)(a) clearly authorise an appeal against an order or decision by the Adjudicating Authority issued under Section 110A and that there is no legal basis to restrict the scope of such provision in the absence of any restrictive conditions in the provisions. 5. He has further relied on certain case laws in support of their entitlement transfer/refund of credit on merits, as follows: (a) Terex India Pvt Ltd., Vs Commissioner of GST & CE, Salem (3) Appeal No. C/30278/2024 [2022 (63) GSTL 238 (Tri – Chennai)] (b) Circor Flow Technologies India Pvt Ltd., Vs Pr. Commissioner of GST &CE, Combatore [2022 (59) GSTL 63 (Tri-Chennai)] (c) USV Pvt Ltd., Vs Commissioner of Central Excise & ST, Daman [2023 (5) Centax 7 (Tri-Ahmd)] (d) Union of India Vs Slovak India Trading Co. Pvt Ltd., [2006 (201) ELT 559 (Kar)] Therefore, according to him the present appeal is maintainable before this Tribunal. 6. On the other hand, Learned DR has raised a preliminary objection on the grounds that the said appeal is not maintainable in view of statutory provisions under Section 35 and especially under Section 35B of Central Excise Act as made applicable to Service Tax, as there is no order passed by the Commissioner (Appeals) under Section 35A in this case. The letter dated 18.082024, which is being referred to by the appellant as an interim order or interlocatory order, is nothing but an acknowledgment cum Deficiency Memo issued by the Superintendent-Registry and not by the Commissioner (Appeals). Therefore, without getting into the merit of the case, perusal of records, admissibility of the refund etc., the appeal is liable to be rejected on the grounds 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: (4) Appeal No. C/30278/2024 (5) Appeal No. C/30278/2024 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, the question is whether this order can be considered as an order passed by the Commissioner (Appeals) under Section 35A which can be entertained by the Tribunal or otherwise. On the face of it, this order has neither been passed by the Commissioner (Appeals) nor has been issued under his authority or direction. 9. Learned Advocate has placed great deal of reliance on the order of the Larger Bench of Tribunal in Gaurav Pharma Ltd., cited supra. In this case, the issue was whether any order passed by the Commissioner of Customs (I & IV) and Commissioner of Customs & Central Excise, Rohtak under Section 110A for provisional release of goods is appealable under Section 129A/128 before the Tribunal or otherwise. In this case, the issue was the maintainability of the appeal against the order passed in respect of provisional release of seized goods under Section 110A but the orders were passed by the Commissioner of Customs or Commissioner of Customs & Central Excise. Thus, the issue decided in the cited case is that the said Authority’s order under Section 110A is not an administrative or interim in nature as contended by Revenue and therefore is appealable under Section 129A before CESTAT. In this case, it is not a case that Commissioner (Appeals) has passed any interim order or administrative order, which could have been considered as appealable order keeping in view the ratio of the judgment cited by the Learned Advocate. It is a case, where there is no speaking order or for that matter any other order or decision has been passed by the Commissioner (Appeals) and therefore it would not be covered within the ambit of Section 35B(1)(b). 10. Therefore, this order cannot be held to be an appealable order where the appeal could lie before this Tribunal. 11. Further, though there is some force in the argument of the Learned Advocate that the said letter is neither speaking nor correct on merit, however, unless it’s maintainability before this Tribunal is decided, this Bench cannot enter into the merit of the case, per se. (6) Appeal No. C/30278/2024 12. Learned Advocate’s reliance on the judgment passed by the Larger Bench in the case of M/s Bosch Electrical Drive India Pvt Ltd., is also not understood in its correct perspective as the observations made by the Larger Bench, especially in para 44, was in the context of deciding the referred issue as to whether the appeal can lie to Customs, 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 2017 is not the “impugned order” against which any direct appeal would lie before this Tribunal. 13. In the facts of the case, the appellant could have approached the Commissioner (Appeals) for seeking Speaking Order or any other appealable order and thereafter he could have come to this Tribunal or he could have availed of the advice given in the impugned letter, but, he apparently did not do the same and instead has come in appeal before this Tribunal against the letter dated 18.03.2024. 14. There is catena of judgment of Hon’ble Supreme Court, High Courts, Tribunals that Tribunal is a creature of statute and therefore cannot exercise beyond what has been explicitely provided under the statute unlike Hon’ble High Courts and Supreme Court. In the case of UOI Vs Kirloskar Pneumatics Company [1996 (84) ELT 401 (SC)] Hon’ble Supreme Court, interalia, observed as under: (7) Appeal No. C/30278/2024 “According to these sub-sections, a claim for refund or an order of refund can be made only in accordance with the provisions of Section 27 which inter alia includes the period of limitation mentioned therein. Mr.Hidayatullah submitted that the period of limitation prescribed by Section 27 does not apply either to a suit filed by the importer or to a writ petition filed by him and that in such cases the period of limitation would be three years. Learned counsel refers to certain decisions of this Court to that effect. We shall assume for the purposes of this appeal that it is so, notwithstanding the fact that the said question is now pending before a larger Constitution on Bench of nine Judges along with the issue relating to unjust enrichment. Yet the question is whether it is permissible for the High Court to direct the Authorities under the Act to act contrary to the aforesaid statutory provision. We do not think it is, even while acting under Article 226 of the Constitution. The power conferred by Article 226/227 is designed to effectuate the law, to enforce the Rule of law and to ensure that the several authorities and organs of the State act in accordance with law. It cannot be invoked for directing the authorities to act contrary to law. In particular, the Customs authorities who are the creatures of the Customs Act, cannot be directed to ignore or act contrary to Section 27, whether before or after amendment. May be the High Court or a Civil Court is not bound by the said provisions but 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 is otherwise in law refundable therefore, comes with a period of limitation of one year. There is no indication in the said provision that such period could be extended by the competent authority on sufficient cause being shown. Secondly, we find that the Apex Court in the case of Mafatlal Industries Ltd. v. Union of India, (1997) 5 SCC 536 had the occasion to deal with the question of delayed claim of refund of Customs and Central Excise. Per majority view, it was held that where refund claim is on the ground of the provisions of the Central Excise and Customs Act whereunder duty is levied is held to be unconstitutional, only in such cases suit or writ petition would be maintainable. Other than such cases, all refund claims must be filed and adjudicated under the Central Excise and Customs Act, as the case may be. Combined with the said decision, if we also take into account the observations of the Apex Court in the case of Kirloskar Pneumatic Company (supra), it would become clear that the petitioner had to file refund claim as provided under Section 11B of the Act and even this Court would not be in a position to ignore the substantive provisions and the time limit prescribed therein. (8) Appeal No. C/30278/2024 The decision of the Bombay High Court in the case of Uttam Steel Ltd. (supra) was rendered in a different factual background. It was a case where the refund clam was filed beyond the period of six months which was the limit prescribed at the relevant time, but within the period of one year. When such refund claim was still pending, law was amended. Section 11B in the amended form provided for extended period of limitation of one year instead of six months which prevailed previously. It was in this background, the Bombay High Court opined that limitation does not extinguish the right to claim refund, but only the remedy thereof. The Bombay High Court, therefore, observed as under: “32. In present case, when the exports were made in the year 1999 the limitation for claiming rebate of duty under Section 11B was six months. Thus, for exports made on 20th May 1999 and 10th June 1999, the due date for application of rebate of duty was 20th November 1999 and 10th December, 1999 respectively. However, both the applications were made belatedly on 28th December 1999, as a result, the claims made by the petitioners were clearly time-barred. Section 11B was amended by Finance Act, 2000 with effect from 12th May 2000, wherein the limitation for applying for refund of any duty was enlarged from ‘six months’ to ‘one year’. Although the amendment came into force with effect from 12th May, 2000, the question is whether that amendment will cover the past transactions so as to apply the extended period of limitation to the goods exported prior to 12th May 2000?” In the case of Collector of Central Excise Vs Doaba Co-operative Sugar Mills Ltd., [1988 (37) ELT 478 (SC)] Hon’ble Supreme Court held as follows: “This Court observed that the Customs Authorities, acting under the Act, were justified in disallowing the claim for refund as they were bound by the period of limitation provided therefore in the relevant provisions of the Customs Act, 1962”. In the case of Everest Flavours Ltd., Vs The Union of India and Other [2012 (282) ELT 481 (Bom)] Hon’ble High Court of Bombay held as follows: “Where the statute provides a period of limitation, in the present case in Section 11B for a claim for rebate, the provision has to be complied with as a mandatory requirement of law.” Relying on the ratio of these judgments it is obvious that a creation of statute like CESTAT cannot traverse beyond what has been explicitly provided within the governing statute. Thus, in view of explicit statutory provisions, discussed supra, regarding the appeal before CESTAT, the impugned order issued by Superintendent-Registry cannot fall under the purview of CESTAT. (9) Appeal No. C/30278/2024 15. As far as the issues of admissibility of the refund/transfer of credit etc., on merit under Section 140 or 142 are concerned, keeping in view the various judgments cited by the Learned Advocate, I cannot get into merit of the refund claim without first deciding the maintainability of appeal itself before this Tribunal and retrain from expressing any view on the merit of case in so far as it relates to transfer/refund of credit. 16. Therefore, without getting into the eligibility of refund or transfer under Tran-A or otherwise in the facts of the case, on the short question of maintainability of this appeal before this Tribunal itself, the appeal is liable to be dismissed and accordingly, I pass the following order: 17. Appeal is dismissed being non-maintainable. (Order Pronounced in open court on 14.08.2024) (A.K. JYOTISHI) MEMBER (TECHNICAL) jaya "