2011 (4) TMI 668 - AT - Central Excise

Section 35E (2) of the Central Excise Act, 1944 - As held by the Hon ble Bombay High Court in the case of Silver Streak Welding Products India Pvt. 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 - therefore, the impugned order passed by the Commissioner (Appeals) is correct in the eyes of law - Therefore, do not find any merit in the appeal filed by the Revenue, hence, the same is rejected.

Summary

Issues:
1. Maintainability of appeal under Section 35E (2) of the Central Excise Act, 1944 before the Commissioner (Appeals).

Analysis:
The appeal before the Appellate Tribunal CESTAT, Mumbai was filed by the Revenue challenging the lower appellate authority's decision that the appeal is not maintainable under Section 35E (2) of the Central Excise Act, 1944. The case revolved around the correct determination of the assessable value of special denatured spirit, ordinary denatured spirit, and rectified spirit, where the issue arose due to the exclusion of administrative fees recovered from buyers by the respondent. The Additional Commissioner initially dropped the show-cause notice, but upon review, authorized the Assistant Commissioner to file an appeal. The respondent objected, citing that only the authority passing the order can file the appeal as per Section 35E (2). The Commissioner (Appeals) agreed with the respondent, holding that the appeal was not maintainable under the mentioned section. The Revenue appealed this decision.

The Legal Draft Representative (Ld. DR) for the Revenue relied on precedents and contested the matter on merits, while the respondent's advocate argued against the maintainability of the appeal, referencing a judgment by the Bombay High Court. The Tribunal, after considering both parties' submissions, focused on the key issue of whether the appeal under Section 35E (2) was maintainable before the Commissioner (Appeals). Citing a judgment by the Bombay High Court, the Tribunal held that the authorization to file the appeal was given to the Assistant Commissioner, not the adjudicating authority (Additional Commissioner), rendering the appeal not maintainable under Section 35E (2). The Tribunal upheld the lower appellate authority's decision, stating that the appeal authorization was incorrect, leading to the rejection of the Revenue's appeal.

In conclusion, the Appellate Tribunal CESTAT, Mumbai found no infirmity in the lower appellate authority's decision, as the authorization to file the appeal was granted to the Assistant Commissioner instead of the adjudicating authority, making the appeal not maintainable under Section 35E (2) of the Central Excise Act, 1944. Consequently, the Tribunal rejected the Revenue's appeal, upholding the correctness of the Commissioner (Appeals) order.