Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, Nasik vs Modhukar Ssk Ltd on 26 April, 2011
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT No. I APPEAL No.E/05/04 (Arising out of Order-in-Appeal No.RK/58/Nasik/2003 dated 12/09/2003 passed by Commissioner of Central Excise & Customs (Appeals), Nagpur) For approval and signature: Honble Mr. B.S.V. Murthy, Member (Technical) Honble Mr. Ashok Jindal, Member (Judicial) ======================================================
1. Whether Press Reporters may be allowed to see : No 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 : Seen of the Order?
4. Whether Order is to be circulated to the Departmental : Yes authorities?
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Commissioner of Central Excise, Nasik Appellant
Vs.
Modhukar SSK Ltd., Respondent
Appearance:
Shri.P. Singh, JDR for appellant
Shri.A.P. Kolte, Advocate, for respondent
CORAM:
Honble Mr. B.S.V. Murthy, Member (Technical)
Honble Mr. Ashok Jindal, Member (Judicial)
Date of Hearing : 26/04/2011
Date of Decision : 26/04/2011
ORDER NO
Per: Ashok Jindal
1. This appeal is filed by the Revenue against the impugned order, wherein the lower appellate authority has held that the appeal is not maintainable under Section 35E (2) of the Central Excise Act, 1944.
2. The brief facts of the case are that a show-cause notice was issued to the respondent to recover the amount on the ground that the respondents have not determined the assessable value correctly of special denatured spirit, ordinary denatures spirit and rectified spirit inasmuch as the respondent has not included the amount of administrative fees recovered from the buyers of the goods. The adjudicating authority (Additional Commissioner) dropped the show-cause notice. Thereafter, the adjudication order was reviewed and authorised the Assistant Commissioner of Central Excise, Jalgaon to file an appeal against the said order. The objection was taken by the respondent that as per Section 35E (2), the only authority, who pass the order can only be authorised to file the appeal. The respondent also contested the matter on merits also. The Commissioner (Appeals) considered the submissions of the respondent and held that the appeal filed by the department under Section 35E(2) of the Central Excise Act, 1944 is not maintainable as the appeal is not filed by the such person, who has passed the adjudication order. The Commissioner (Appeals) has also passed the order and rejected the appeal of the department on merits. Aggrieved by the said order, the Revenue is in appeal before us.
3. The Ld. DR relied on the decision of CCE, Meerut Vs. Blue Star Spinning Mills Ltd., reported in 2005 (182) ELT 125 (Tri-Del). He also contested the issue on merits and relied on the decision of Gustad Mayur Irani Vs. State of Maharashtra, reported in 1991 (51) ELT 232 (Bom) and submitted that in view of the cited judgements, the impugned order is to be set aside.
4. On the other hand, the Ld. Advocate for the respondent submitted that this appeal is not maintainable as held by the Honble Bombay High Court in the case of CCE Vs. Silver Streak Welding Products India Pvt Ltd., reported in 2008 (226) ELT 704 (Bom).
5. Heard and considered.
6. After consideration of the submissions made by both sides, without going into the merits of the case, we feel that first issue is to be decided by us whether the appeal under Section 35E (2) of the Central Excise Act, 1944 is maintainable before the Commissioner (Appeals) or not and the impugned order on this issue is correct or not. As held by the Honble Bombay High Court in the case of Silver Streak Welding Products India Pvt. Ltd., wherein the Honble Bombay High Court has held that the authorization to seek review given by the Commissioner to Deputy Commissioner and not the adjudicating authority (Additional Commissioner), the appeal is not maintainable under Section 35E (2) of the Central Excise Act, 1944. We are bound by the decision of jurisdictional High Court of Bombay.
7. Therefore, we do not find any infirmity in the impugned order, wherein the lower appellate authority has rejected the appeal on the ground that the authorization to file the appeal was given to the Assistant Commissioner and not to the adjudicating authority (Additional Commissioner), therefore, the impugned order passed by the Commissioner (Appeals) is correct in the eyes of law. Therefore, we do not find any merit in the appeal filed by the Revenue, hence, the same is rejected.
(Pronounced in Court) (B.S.V. Murthy) Member (Technical) (Ashok Jindal) Member (Judicial) pj 1 4