2013 (7) TMI 306 - AT - Central Excise

Same person who reviewed the order cannot decide the appeal - The adjudication order was reviewed by the then Commissioner of Central Excise, Shri Bhikhoo Ram, and thereafter Shri Bhikhoo Ram as Commissioner (Appeals) accepted the appeal filed by the Revenue Held that - Merit in the contention of the applicant and that the same authority who reviewed the order cannot decide the appeal. In these circumstances, the impugned order is set aside and the matter is remanded to the Commissioner (Appeals) to decide afresh - jurisdictional Chief Commissioner of CE requested to entrust this appeal to the Commissioner (Appeals) other than Shri Bhikhoo Ram In favor of Assessee.

Summary

Issues:
1. Waiver of pre-deposit of penalty.
2. Review of adjudication order by the same authority.
3. Impugned order sustainability.

Waiver of Pre-deposit of Penalty:
The appellant sought waiver of pre-deposit of penalty as duty along with interest had already been paid. The Tribunal granted the waiver for the appeal hearing based on this ground.

Review by the Same Authority:
The appellant contended that the review and subsequent decision by the same person, Shri Bhikhoo Ram, as both Commissioner of Central Excise and Commissioner (Appeals), rendered the impugned order unsustainable. The Tribunal agreed with this contention, noting that the authority who reviewed the order should not decide the appeal. Consequently, the impugned order was set aside, and the matter remanded to the Commissioner (Appeals) for a fresh decision. To ensure fairness, the jurisdictional Chief Commissioner was requested to assign the appeal to a different Commissioner (Appeals) other than Shri Bhikhoo Ram.

Impugned Order Sustainability:
Upon reviewing the appeal papers, the Tribunal observed that the adjudicating authority had initially dropped the proceedings initiated by the show cause notice. However, the subsequent actions by Shri Bhikhoo Ram in reviewing the order and then deciding the appeal raised concerns about the sustainability of the impugned order. In light of this, the Tribunal set aside the order and directed a fresh decision by a different Commissioner (Appeals) to ensure impartiality in the adjudication process. The appeal was disposed of by way of remand.