Custom, Excise & Service Tax Tribunal
M/S Uttam (Bharat) Electricals (P) Ltd vs Cce, Jaipur on 5 May, 2010
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Block No.2, R. K. Puram, New Delhi. Date of hearing/decision: 05.05.2010 For approval and signature: Honble Shri Justice R.M.S. Khandeparkar, President Honble Shri Rakesh Kumar, Member (Technical) 1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982. 2 Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? 3 Whether Their Lordships wish to see the fair copy of the Order? 4 Whether Order is to be circulated to the Departmental authorities? Excise Appeal No. 3306 of 2009 with Excise Stay No. 3381 of 2009 [Arising out of Order-in-Appeal No. 200 (DK) CE/JPR-1/ 2009 dated 18.08.2009 passed by the Commissioner (Appeals-1) Central Excise, Jaipur]. M/s Uttam (Bharat) Electricals (P) Ltd., Appellant Vs. CCE, Jaipur Respondent
Appearance: Written submission Rep. by Sh. B.K. Singh, Jt. CDR for the respondent.
Coram: Honble Sh. Justice R.M.S. Khandeparkar, President Honble Sh. Rakesh Kumar, Member (Technical) Oral order No._____ Per: Shri Justice R.M.S. Khandeparkar:
None present for the appellants. Learned DR present for the respondent.
2. The written submissions filed by the appellants disclose his request for waiver of his personal appearance for disposal of the matter on merits. Considering the same and upon hearing the learned Joint CDR and on perusal of the records placed before us we proceed to dispose of the matter.
3. The appellants in this appeal seeks to challenge the order dated 18.08.2009 passed by the Commissioner (Appeals), Jaipur whereby the Commissioner (Appeals) has allowed the appeal filed by the Department against the order passed by the adjudicating authority and has directed recovery of interest amount to the tune of Rs. 16,010/- from the appellants under Section 11AB of the Central Excise Act, 1944 read with rule 8 of the Central Excise Rules, 2002. The said appeal was filed by the Department against the order passed by the Joint Commissioner on 11.09.2008 whereby the proceedings initiated against the appellant pursuant to the show cause notice dated 17.04.2008 were sought to be dropped.
4. The sole ground on which the impugned order is sought to be challenged is that the appeal filed by the Department against the order of the Joint Commissioner before the Commissioner (Appeals) was not verified by the competent authority, and inspite of the fact that the said objection was specifically raised by the appellants, the same was totally discarded by the Commissioner (Appeals). In support of the said ground, the appellants have relied upon the decision of the Honble Supreme Court in the matter of CCE vs. M/s SKF India Limited reported in 2009 (239) ELT 385 (SC) and of Tribunals decision in the matter of CC, Rajkot vs. J.M. Industries reported in 2000 (122) ELT 489, CCE, Meerut vs. Controls and Switchgear Co. Ltd., reported in 1998 (102) ELT 224 (Tribunal), CC(I) Mumbai vs. Premier Automobiles Ltd., reported in 2001 (133) ELT 742, CC, Surat vs. Special Prints Ltd., reported in 2000 (121) ELT 813, Moosa Haji Patruwala Pvt. Ltd., vs. CCE, Mumbai-IV reported in 2001 (130) ELT 320 (Tri. Mum.) and Philips India Ltd., vs. CCE, Mumbai reported in 2003 (154) ELT 234 (Tri. Mum.). It is also sought to be contended that there can be no dispute on the point of requirement of payment of interest in view of decision of the Apex Court in SKF India (supra) matter.
5. Perusal of the memo of appeal and the records nowhere discloses the basis on which the objection about absence of verification and the need for such verification of the memo of appeal before the Commissioner (Appeals) was sought to be raised.
6. The appeal before the Commissioner is always in terms of Section 35 of the Central Excise Act, 1944. The procedure to be followed by the Commissioner (Appeals) while dealing with the appeals filed before him is provided under Section 35A of the said Act.
7. Section 37(1) provides that the Government may make rules to carry into effect the purposes of the said act. Accordingly the Government has framed Central Excise (Appeals) Rules, 2001. Rule 3(1) thereof provides that an appeal under sub-section (1) of Section 35 of the said Act to the Commissioner (Appeals) shall be made in form No. E.A.-1. Sub-rule (2) thereof provides that the grounds of appeal and the form of verification as contained in form No. E.A.-1 shall be signed, in the case of an individual, by the individual himself or where the individual is absent from India, by the individual concerned or by any person duly authorized by him in that behalf; and where the individual is a minor or is mentally incapacitated from attending to his affairs, by his guardian or by any other person competent to act on his behalf, in case the case of a Hindu undivided family by the Karta and, where the Karta is absent from India or is mentally incapacitated from attending to his affairs by any other adult member of such family, in case of a company or local authority by the principal officer thereof, in case of a firm by any partner thereof, not being a minor, and in case of any other association by any member of the association or the principal officer thereof; and in case of any other person, by that person or any person competent to act on his behalf.
8. As far as the appeals by the Department are concerned, the procedure in that regard is comprised under Section 35E of the said act. The same provides as under:-
Section 35E. Powers of Committee of Chief Commissioners of Central Excise or Commissioner of Central Excise to pass certain orders.- (1) The Committee of Chief Commissioners of Central Excise may, of its own motion, call for and examine the record of any proceeding in which a Commissioner of Central Excise as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such Commissioner or any other Commissioner to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the Committee of Chief Commissioners of Central Excise in its order.
(2) The Commissioner of Central Excise may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct such authority to apply to the Commissioner (appeals) for the determination of such points arising out of the decision or order as may be specified by the Commissioner of Central Excise in his order.
(3) The Committee of Chief Commissioners of Central Excise or Commissioner of Central Excise, as the case may be, shall, where it is possible to do so, make order under sub-section (1) or sub-section (2), within a period of six months, but not beyond a period of one year, from the date of the decision or order of the adjudicating authority.
(4) Where in pursuance of an order under sub-section (1) or sub-section (2) the adjudicating authority or the authorized officer makes an application to the Appellate Tribunal or the Commissioner (Appeals) within a period of three months from the date of communication of the order under sub-section (1) or sub-section (2) to the adjudicating authority, such application shall be heard by the Appellate Tribunal or the Commissioner (Appeals), as the case may be, as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals, including the provisions of sub-section (4) of section 35B shall, so far as may be, apply to such application.
9. Rule 4 of the said Rules provides that an application under sub-section (4) of Section 35E of the said Act to the Commissioner (Appeals) shall be made in form E.A.-2. It further provides that such form shall be filed in duplicate and shall be accompanied by a certified copy of the decision or order passed by the adjudicating authority and a copy of the order passed by the Commissioner of Central Excise directing such authority to apply to the Commissioner (Appeals).
10. Apparently, the provisions of law in relation to the appeal to be filed on behalf of the Department specifically provide that the same shall be in form E.A.-2. Neither the said form nor the provision under which the format in that regard has been prescribed provides for verification clause in relation to such appeals by the Department.
11. The decisions which are sought to be relied upon by the appellants in support of the contention regarding the necessity of verification are in relation to the appeals which are required to be filed in the Tribunal and for which Rule 8 of the CESTAT (PROCEDURE) RULES, 1982 is applicable. The Central Excise (Appeals) Rules, 2001 which apply to the appeals before the Commissioner (Appeals) nowhere prescribe that the provisions of Rule 8 of CESTAT (PROCEDURE) RULES, 1982 would be applicable to the appeal before the Commissioner (Appeals). Obviously, none of the decisions sought to be relied upon can be of any help to the appellants in the matter in hand.
12. The decision of the Apex Court in SKF India case is on the point of interest and has no application to the point sought to be canvassed in the matter.
13. For the reasons stated above, therefore, there is no substance in the appeal and hence the same and the application for stay are dismissed.
[Justice R.M.S. Khandeparkar] President [Rakesh Kumar] Member [Technical] /Pant/ ??
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