Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise & ... vs Motor Industries Ltd on 30 August, 2011
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Appeal No. E/1942/04 & E/CO-512/2004
(Arising out Order-in-Appeal No. CEX/XI/JMJ/80/916 APPEALS/2004 dated 27.2.2004 passed by the Commissioner of Central Excise & Customs (Appeals), Nashik)
For approval and signature:
Honble Mr. Ashok Jindal, Member (Judicial)
Honble Mr. Sahab Singh, Member (Technical)
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 Yes CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy Yes
of the Order?
4. Whether Order is to be circulated to the Departmental Yes
authorities?
Commissioner of Central Excise & Customs, Nashik
Appellant
Vs.
Motor Industries Ltd.
Respondent
Appearance:
Shri V.K. Agarwal, SDR for the appellant Ms. Padmavati Patil, Advocate for the respondent CORAM:
Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. Sahab Singh, Member (Technical) Date of hearing : 30.08.2011 Date of decision : 30.08.2011 O R D E R No:..
Per: Mr. Sahab Singh, Member (Technical) This is an appeal filed by the revenue against the Order-in-Appeal No. CEX/XI/JMJ/80/916 APPEALS/2004 dated 27.2.2004.
2. The brief facts of the case are that a show-cause notice dated 26.3.1999 was issued demanding a duty of Rs.10,81,815/- by the Additional Commissioner, Central Excise, Nashik on the ground that respondent were not revising the price list and they were adding 10% normal profit in the cost instead of actual profit. That show cause notice was adjudicated by the Additional Commissioner vide his Order-in-Original no. 10/00 dated 25.2.2000 in which he confirmed the duty amount of Rs.3,51,794/- along with interest and dropped the demand amounting to Rs.7,30,021/-. He also imposed a penalty Rs.43,683/- under Section 11AC of the Central Excise Act. He did not impose any penalty under section 173Q of the Act. The said Order-in-Original was reviewed under Section 35E by the Commissioner, Central Excise, Nashik who issued direction to the Dy. Commissioner to file the appeal against the order passed by Additional Commissioner before the Commissioner (Appeals). The Commissioner (Appeals) vide impugned order has held that appeal filed by Dy. Commissioner is not legally maintainable as under Section 35E(2), Commissioner, Central Excise can authorize the officer who has passed the adjudication order for filing the appeal. In the present case, the Order-in-Original was passed by the Additional Commissioner whereas the Commissioner has authorized the Dy. Commissioner for filing the appeal. Therefore, the revenues appeal was rejected by the Commissioner (Appeals) without expressing any opinion on merit. The revenue is in appeal against the impugned order before this Tribunal.
3. Ld. SDR appeared for the revenue stated that in the present case the Order-in-Original passed by the Additional Commissioner was reviewed by the Commissioner and Dy. Commissioner was authorized to file an appeal before the Commissioner (Appeals). He submitted that Order-in-Appeal passed by the Commissioner may kindly be set aside.
4. No one appeared on behalf of the respondent despite notice. After going through appeal papers, we find the short question involved in this case whether the Commissioner can authorize Dy. Commissioner to file an appeal before the Commissioner (Appeals) when the Order-in-Original was passed by the Additional Commissioner. The issue stands settled by this Tribunal in case of M/s CCE Nashik vs. Madhukar SSK vide order no. A/359/11/EB/C-II dated 26.4.2011. Para 6 of the order is reproduced hereunder:-
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 Hon'ble Bombay High Court in the case of Silver Streak Welding Products India P. Ltd. wherein the Hon'ble 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.
5. We therefore do not find any infirmity in the impugned order where the Commissioner (Appeals) has rejected the appeal on the ground that authorization to file the appeal was given to the Dy. Commissioner and not to the adjudicating authority (Additional Commissioner). We therefore uphold the impugned order and dismiss the revenues appeal.
(Operative part pronounced in Court) (Ashok Jindal) (Sahab Singh) Member (Judicial) Member (Technical) SR 4