2004 (4) TMI 390 - AT - Central Excise

Summary

Issues: Jurisdictional authority to file appeals before Commissioner (Appeals)

In this case, the common issue involved in both appeals pertains to jurisdiction, leading to a joint consideration. The appellants argue that the Assistant Commissioner dropped the proceedings mentioned in the show cause notice, and the Commissioner of Central Excise directed the Assistant Commissioner (Audit) to file appeals against the adjudication order. However, the appellants assert that the appeals were actually filed by a different Assistant Commissioner, not the one authorized by the Commissioner. The appellants contend that as per Section 35E(2) of the Act, only the adjudicating authority subordinate to the Collector can be directed to apply for the determination of points arising from an order. The Commissioner does not have the power to direct any other authority to make such an application to the Commissioner (Appeals).

During the proceedings, the Revenue was instructed to verify if the Assistant Commissioners who filed the appeals had the charge of Audit during the relevant period. The Revenue presented a letter confirming that the Assistant Commissioner of Mehsana did not hold the position of Assistant Commissioner (Audit) at that time. Section 35E(2) of the Act clearly specifies that only the adjudicating authority subordinate to the Collector can be directed to apply to the Commissioner for the determination of points arising from an order. In this case, the adjudication orders were issued by the Assistant Commissioner (Audit), and the Commissioner directed the Assistant Commissioner (Audit) to file the appeal. However, it was revealed that appeals were filed by Assistant Commissioners other than the designated Assistant Commissioner (Audit), as acknowledged by the Revenue.

The Tribunal found merit in the appellants' arguments, determining that the Assistant Commissioner who filed the appeals before the Commissioner (Appeals) was not authorized to do so. Consequently, the impugned order was set aside, and the appeals were allowed solely on the grounds of jurisdiction without delving into the case's merits. The appellants were deemed entitled to any consequential relief as per the law.