2010 (6) TMI 803 - HC - Central Excise

Summary

Issues Involved:
1. Error in remanding the matter to the Chief Commissioner instead of the Commissioner of Central Excise.
2. Error in dismissing the appeal filed by the department based on Circular No. 825/2/2006-CX.

Issue-wise Detailed Analysis:

1. Error in remanding the matter to the Chief Commissioner instead of the Commissioner of Central Excise:

The Tribunal had remanded the matter to the Chief Commissioner of Central Excise, Shillong, for a fresh decision. The Tribunal noted that the Committee did not meet within the prescribed time schedule nor accorded a hearing to the assessees before deciding on the issues involved. The Tribunal observed that without the Committee's scrutiny, the proceedings initiated by the Commissioner of Excise, Shillong, were a "mockery of quasi-judicial process." Consequently, the Tribunal interfered with the orders dated 30-1-2006 and remanded the matter to the Chief Commissioner of Central Excise, Shillong, for a fresh decision. However, the High Court found this direction untenable, as the Committee had, albeit belatedly, held its meetings and scrutinized the claims. The High Court concluded that the Tribunal's assumption was unfounded and thus interfered with the Tribunal's determination regarding the appeals filed by the assessees.

2. Error in dismissing the appeal filed by the department based on Circular No. 825/2/2006-CX:

The Tribunal dismissed the appeal of the Revenue on the ground that the authorization made by one Chief Commissioner for preferring the appeal in the event of a difference of opinion between the two members had no sanction of law. The High Court noted that at the relevant time, Circular No. 825/2/2006-CX permitted an appeal to be filed at the instance of one member of the Committee in case of a difference of opinion. However, with the amendment to Section 35E of the Act effective from 10-5-2008, the procedure required the Committee to state the points of difference to the Board of Central Excise, which would then direct the Commissioner to apply to the Tribunal. The High Court held that the appeal of the Revenue was not maintainable under the current law and thus sustained the Tribunal's decision to dismiss the Revenue's appeal.

Conclusion and Directions:

The High Court sustained the Tribunal's decision regarding the appeal of the Revenue but interfered with the Tribunal's determination concerning the assessees' appeals. The High Court remanded the matter to the Tribunal to scrutinize the assessees' claims on all relevant aspects, including the acceptance of secured payments as final investments. The Tribunal was directed to dispose of the appeals within 60 days, providing reasonable opportunities for hearing to the parties. The High Court also allowed the Tribunal to consider interim protection against coercive action by the Revenue if requested by the assessees. The appeal was disposed of accordingly, with no costs.