Customs, Excise and Gold Tribunal - Bangalore
Gee Key Enterprises, Southern Auto ... vs Cce on 9 July, 2004
Equivalent citations: 2005(100)ECC427
ORDER S.L. Peeran, Member (J)
1. All these three appeals arise from Order-in-Appeal No. 158/2002-CE dated 4.4.2002. The Commissioner allowed the departmental appeal insofar as the classification of 3 items viz. Oil Gauge, Front Stand Pin and Hub Pin, Seat Steering Clutch and Shoe Steering Clutch. The appellants have accepted the said classification adopted by the Commissioner in terms of the impugned order and has paid the differential duty. The Commissioner had merely observed that penalty under Section 11AC is imposable. However he has not imposed any penalty. Therefore, on a consideration of the grounds made in the appeal, we have to hold that there is no penalty imposed under Section 11AC by the Commissioner (Appeals) and the appellants are not liable to pay any penalty under Section 11AC on revision of classification by the Commissioner (Appeals) in the departmental appeal. The next ground raised by the appellant is that the penalty imposed in Order-in-Original of Rs. 14,934.59 in terms of Section 11AC read with Rule 173Q and penalty of Rs. 10,000 on Mr. M.S. Kannankutty, Proprietor of the firm under Rule 209A, is not imposable. The Commissioner (Appeals) noted that the party had not filed the appeal before him on being aggrieved with the Order-in-original No. 19A/2000 dated 13.3.2000 by which the above-named penalties were imposed and hence he cannot consider the cross-objection on this aspect.
2. The learned Counsel strenuously argued the matter and contended that before the Commissioner (Appeals), they had filed a cross-objection in the departmental appeal and, therefore, they are deemed to have filed an appeal. The Commissioner (Appeals) has noted that there is no provision for filing cross-objection, against the departmental appeal that too after a lapse of 17 months from the date of the order and on that portion of Order-in-original on which department is not aggrieved. He has noted that if the party was aggrieved then they should have filed an appeal within three months against the Order-in-original.
3. The learned Counsel submits that the appeal is maintainable. However, this was seriously disputed by the learned SDR. He pointed out that the provision to file cross-objection is available only before the Tribunal in terms of Section 35B(4) of the Act. It is not available in terms of Section 35E of the Act which grants power to the Board or the Commissioner to file appeals before the Commissioner. In view of the absence of any provision to entertain cross-objections after a lapse of 17 months, the Commissioner has rightly rejected their cross-objection and held that the Order-in-original imposing penalty against the appellants is justified. It was further submitted that in terms of Section 35E(4), the provisions of Section 35B(4) applies "so far as may be, apply to such application". In other words, cross-objection before Commissioner (Appeals) in Revenue review application has to confine itself to the portion of the order appealed against and the party cannot file cross-objection to the portion not appealed against.
4. On our careful consideration and perusal of the provisions of law laid down under Sections 35E and 35B, we are satisfied that the Commissioner has rightly discussed the issue. The appellants did not choose to file an appeal against the Order-in-original No. 19-A/2000 dated 13.3.2000. Therefore, such cross-objection cannot be filed by the appellants against that order portion on which the department is not aggrieved. Such cross-objection is not maintainable. There is no provision carved out in Section 35E to enable the party to file cross-objections in the departmental appeal before the Commissioner (Appeals) on the portion of order not appealed by them. Therefore, we are in agreement with the argument of the learned SDR and the findings recorded by the Commissioner (Appeals) that the penalties imposed in Order-in-Original has become final as no appeal was filed by the appellants before the Commissioner (Appeals). There is no merit in these appeals and the same are rejected.