2016 (9) TMI 135 - HC - Central Excise

Validity of impugned order of Revisionary Authority - passed by the officer of the same rank as is the appellate authority - Held that - the impugned order was passed by the Joint Secretary to Government of India who was also Commissioner of Central Excise and Customs. Thus the order in appeal as well as revisionary order had been passed by the officers of the same rank which is not permissible as per law. Adverting to the judgments relied upon by the respondents it may be noticed that the said decisions were based on individual fact situation involved therein. Thus the respondents cannot derive any advantage from the said pronouncements. Therefore the petitions are allowed. The impugned order are set aside. However liberty is granted to the State to proceed afresh in accordance with law but without prejudice to the rights of the parties. - Petition disposed of

Summary

Issues:
Challenge to order of Revisionary Authority on grounds of same rank as appellate authority.

Analysis:
The petitioner challenged the order dated 9.9.2011 passed by the Revisionary Authority, which rejected the revision against the order in appeal dated 31.8.2006 by the Commissioner (Appeals), Central Excise. The Commissioner had modified the order passed by the adjudicating authority on 6.3.2006. The petitioner argued that the Revisionary Authority must be of a higher rank than the appellate authority, citing a Division Bench judgment. The respondents did not dispute this legal position. The Court referred to a previous case and held that revision by an officer of the same rank as the appellate authority is impermissible. The impugned order was passed by an officer of the same rank, violating this principle. The Court allowed the petitions, setting aside the impugned orders but granting the State the liberty to proceed afresh in accordance with the law, without prejudice to the parties' rights.

The Court considered the arguments presented by both parties and examined relevant case law. It was noted that judgments cited by the respondents were based on specific factual situations and did not support their position. The Court emphasized that the revision by an officer of the same rank as the appellate authority is not permissible. Referring to previous cases and legal principles, the Court concluded that the impugned order by the Revisionary Authority was invalid due to the officer's rank being the same as the appellate authority. Consequently, the Court allowed the petitions, setting aside the impugned orders, and provided the State with the opportunity to proceed afresh in compliance with the law, while safeguarding the parties' rights.

In a detailed analysis, the Court discussed the legal position regarding the revisionary power exercised by an officer of the same rank as the appellate authority. Citing relevant case law, the Court highlighted that such revision is impermissible. The Court referred to specific instances and judgments to support its decision. It was established that the impugned order, passed by an officer of the same rank as the appellate authority, violated this legal principle. Consequently, the Court allowed the petitions, setting aside the impugned orders, and granted the State the liberty to proceed afresh in accordance with the law, ensuring the parties' rights are protected.