2000 (3) TMI 1 - AT - Service Tax

Summary

Issues:
1. Jurisdiction of Commissioner (Appeals) to consider appeal against order in original passed by Commissioner of Central Excise.
2. Applicability of appellate authority's rank in relation to the original authority.

Analysis:
1. The first issue revolves around the jurisdiction of the Commissioner (Appeals) to entertain appeals against orders in original passed by the Commissioner of Central Excise under Section 73 of the Finance Act. The appellant argued that Section 85(1) of the Act allows for appeals against assessment orders under Sections 71, 72, or 73 to be made to the Commissioner (Appeals). The appellant cited a tribunal decision in Bharati Cellular Ltd. v. CCE to support their stance that orders passed under Section 73 are appealable to the Commissioner (Appeals). On the other hand, the Departmental Representative contended that the appellate authority must be of a higher rank than the original authority. However, the Tribunal held that as per the statutory provisions, orders passed under Section 73 are appealable to the Commissioner (Appeals) and not the Tribunal, as outlined in Section 86(1). The Tribunal emphasized the need to follow statutory provisions and suggested that any changes should be addressed by the legislative authority.

2. The second issue pertains to the cardinal principle that the appellate authority should be of a higher rank than the original authority. The Departmental Representative argued that the Commissioner (Appeals) cannot sit in judgment over the order passed by the Commissioner of Central Excise as they hold the same rank and status. The Tribunal, after considering the submissions and statutory provisions, concluded that the appeal does not lie before the Tribunal but before the Commissioner (Appeals) under Section 85(1). The Tribunal highlighted the importance of adhering to statutory provisions and suggested that the Central Board of Excise & Customs should specify the qualifying ranks under the term "Central Excise Officer" mentioned in the statute.

In light of the above analysis, the Tribunal set aside the impugned order in appeal and remanded the matter to the Commissioner (Appeals) for a fresh consideration of the appeal on its merits. Additionally, the Commissioner (Appeals) was directed to review the stay application connected with the appeal. The Tribunal dismissed the stay application in another appeal by the same appellants against the order in original passed by the Commissioner of Central Excise.