2011 (1) TMI 1018 - AT - Central Excise

Duty confirmed - maintainability of appeal - Commissioner of Central Excise has directed the Dy. Commissioner of Central Excise, Belapur to file an appeal before the Commissioner (Appeals) against the order passed by the Additional Commissioner - Held that - Silver Streak Welding Products (2007 (9) TMI 222 - HIGH COURT BOMBAY) held that the authority on whom the power was confirmed is in the adjudicating authority, appeal filed by the Deputy Commissioner before the Commissioner (Appeals) in the case in which the impugned order is before us in challenge was not maintainable before the Commissioner (Appeals), Appeal is allowed with consequential relief, if any.

Summary

Issues:
1. Jurisdictional error in filing an appeal by a lower-ranking officer against a higher-ranking officer.

Analysis:

The case involved an appeal filed by the appellants to set aside a duty confirmed on capping cement cleared during a specific period. The impugned order classified the cement as an excisable commodity under a particular heading. The appellant's advocate argued that the review order directing a Deputy Commissioner to file an appeal before the Commissioner (Appeals) was legally flawed. The argument was based on the premise that an officer of lower rank cannot appeal against a higher-ranking officer, citing relevant legal precedents such as Commissioner of Central Excise vs. Interscape and CCE vs. Silver Streak Welding Products India P. Ltd.

Upon examination, the Tribunal referred to Section 35E(2) of the Central Excise Act, which empowers the Commissioner to direct an adjudicating authority to file an appeal before the Commissioner (Appeals). The Tribunal noted that the Commissioner had indeed directed the Deputy Commissioner to file an appeal in this case. Referring to the legal position established in the case of Silver Streak Welding Products, where a similar situation was addressed, the Tribunal concluded that the appeal filed by the Deputy Commissioner against the Additional Commissioner was not maintainable before the Commissioner (Appeals). Consequently, the impugned order was deemed not maintainable and was set aside.

In conclusion, the Tribunal allowed the appeal with any consequential relief, if applicable. The decision was based on the principle that an appeal by a lower-ranking officer against a higher-ranking officer was not permissible under the relevant legal provisions and precedents, leading to the setting aside of the impugned order.