1. This appeal filed by the assessee is directed against an order passed by the Commissioner (Appeals).

2. The facts of this case are as follows :-

The appellant had claimed rebate of central excise duty of Rs. 57,85,050/- on goods exported to various countries. The original authority sanctioned the claim to the extent of Rs. 56,42,157/- and rejected the balance claim of Rs. 1,42,893/-. The party was not aggrieved by rejection of rebate claim to the extent of Rs. 53,180/-. As regards rejection of rebate claim of Rs. 89,713/-, they preferred an appeal to the Commissioner (Appeals). There was a delay of four days in the filing of that appeal. The party applied for its condonation on certain grounds. The learned Commissioner (Appeals) was not impressed with the reasons stated for the delay of the appeal. In the result, the appeal against the order-in-original came to be dismissed as time-barred. The present appeal of the party is directed against the appellate Commissioner's order.

3. Today's is the second listing of the case for hearing and the first occasion for both sides to address the Bench. The learned Superintendent (AR) raises a preliminary objection. He submits that, as the impugned order relates to rebate of duty of excise on goods exported to countries outside India, the appeal is barred by clause (b) of the first proviso to sub-section (1) of Section 35B of the Central Excise Act. It is submitted that the remedy available to the appellant is an application to the Central Government under Section 35EE of the Act (revision by Central Government). Accordingly it is urged that the appeal be dismissed as not maintainable.

4. The learned counsel for the appellant submits that this appeal was filed as advised by the Commissioner (Appeals) himself. In this connection, he refers to the preamble to the impugned order, which contains the following advice :

"Any person aggrieved by this order, may under Section 35B of the Act, read with Rule 6 of the Rules file an appeal to the Customs, Excise & Service Tax Appellate Tribunal, South Zonal Bench,…….."

The learned counsel also explains the circumstances in which the appeal against the order-in-original happened to be delayed by four days. He prays for condonation of this delay and remand of the case to the Commissioner (Appeals) for a decision on merits.

5. The rival submissions made before me with reference to the relevant provisions of the Central Excise Act have occasioned a re-look at the provisions with a view to determining the maintainability of this appeal. Section 35B of the Act, shorn of irrelevant portions, reads as follows :

"SECTION 35B. Appeals to the Appellate Tribunal. -

(1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order -

(b) an order passed by the Commissioner (Appeals) under Section 35A;

Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such order relates to, —

(b) a rebate of duty of excise on goods exported to any country or territory outside India or on excisable materials used in the manufacture of goods which are exported to any country or territory outside India :

(underlining added)

As the impugned order is an order passed by the Commissioner (Appeals) under Section 35A, it needs to be examined as to whether this appeal is barred by clause (b) of the proviso. If the impugned order can be considered as an order relating to a rebate of duty of excise on goods exported to countries outside India, then it has to be held that the appeal is not maintainable before this Appellate Tribunal and that the remedy available to the appellant is to file a revision application with the Central Government under Section 35EE of the Act. Sub-section (1) of Section 35EE of the Act reads as under :

"SECTION 35EE. Revision by Central Go