2006 (4) TMI 48 - AT - Central Excise

Appeal by Department Appellant contended that OIO was passed by the Jt. Commissioner of CEC appeal filed by the Dy,. Commissioner which is totally in violation of provision of Section 35E(2) of the appeal of the appellant Authority allow he appeal of the appellants

Summary

Issues: Violation of provisions of Section 35E(2) of the Central Excise Act, 1944 by filing appeal by a different authority than the one passing the original order.

In this judgment by the Appellate Tribunal CESTAT, Kolkata, the appeal was directed against an order-in-appeal dated 15-10-2004 that set aside the order-in-original where the appellant's contention was accepted, and proceedings initiated under the show cause notice. The main challenge raised by the appellant was that the order-in-original was passed by a specific authority while the appeal was filed by a different authority, which was argued to be a violation of Section 35E(2) of the Central Excise Act, 1944. The provisions of Section 35E(2) were examined to understand the legality of the situation. The Tribunal referred to a similar case where it was held that the power under Section 35E(2) is to call for and examine the record of any proceeding where an adjudicating authority subordinate to the Commissioner has passed a decision, and only that specific authority can be directed to apply to the Commissioner (Appeals) for determination. The Tribunal concluded that the appellant's case was covered by the precedent set in the mentioned case.

The judgment relied on the interpretation of Section 35E(2) and a previous Tribunal decision to allow the appeal of the appellant based on the violation of provisions by filing the appeal with a different authority than the one passing the original order. The Tribunal's decision was in favor of the appellant, granting the appeal with any consequential relief deemed necessary. The judgment was pronounced in the open court, emphasizing the adherence to legal provisions and precedents in deciding the case.