2013 (4) TMI 157 - AT - Central Excise

Demanding duty from the firm and penalties were imposed on the firm & partner both - Appellant signed the appeal memo filed by the firm & no separate appeal - Held that - In the present case the facts are different aswe find that before the Commissioner (Appeals) there was no joint appeal filed by the firm as well as partner. As per the provisions of Section 35 of the Central excise Act any person aggrieved by any decision or order passed under this Act by a Central Excise Officer, lower in rank than a Commissioner of Central Excise, may appeal to Commissioner (Appeals) within 60 days from the date of communication to him of such decision or order. From reading of the above provisions, it is clear that any person aggrieved by the order passed by the adjudicating authority has to file appeal - In the present case, no appeal has been filed by the present appellant before the Commissioner (Appeals) - The appeal filed by the firm cannot be considered as joint appeal, as the appeal is filed only by the firm and name of the appellant had not mentioned in the appeal memo as appellant - In these circumstances, we find that the present appeal is not maintainable. Appeal is dismissed in favour of Revenue.

Summary

Issues:
Maintainability of the appeal filed by the appellant.

Analysis:
The judgment by the Appellate Tribunal CESTAT MUMBAI dealt with the issue of the maintainability of an appeal filed by the appellant. The appellant, a partner in a firm, had not filed a separate appeal against the adjudication order demanding duty and imposing penalties on the firm and the partner. The Commissioner (Appeals) decided that since the appellant had not filed any appeal against the order, the contention regarding the penalty imposed on the appellant was not sustainable. The appellant argued that as a partner, signing the appeal memo filed by the firm should be considered as filing an appeal. The appellant also contended that the Commissioner (Appeals) did not object to the arguments regarding the penalty during the appeal process. The appellant cited previous Tribunal decisions where joint appeals were considered maintainable. However, the Tribunal noted that in the present case, no joint appeal was filed by both the firm and the partner before the Commissioner (Appeals).

The Tribunal analyzed the provisions of Section 35 of the Central Excise Act, which allow any person aggrieved by a decision or order to file an appeal within a specified period. The Tribunal emphasized that in the present case, the appellant did not file a separate appeal before the Commissioner (Appeals). The appeal filed by the firm was not considered a joint appeal as the appellant's name was not mentioned as an appellant in the appeal memo. Therefore, the Tribunal concluded that the present appeal was not maintainable and dismissed it.