2017 (4) TMI 433 - AT - Central Excise

Jurisdiction - power of Commissioner (Appeals) to condone delay - The entire ground of the revenue in their appeal is that the Commissioner (Appeals) has condoned the lapses u/r 96ZM whereas the power for condoning such lapse is vested only with the jurisdictional Commissioner and the Commissioner (Appeals) has no power to exercise the jurisdiction of the Commissioner - Held that - As per Rule 96ZM, only jurisdictional Commissioner has power to condone the lapse, therefore the Commissioner (Appeals) cannot exercise the power which is vested in Commissioner. The right course on the part of the Commissioner (Appeals) was that he should have directed the adjudicating authority to first ascertain the decision of the Commissioner on the issue of condoning the lapse and thereafter pass a reasoned order - matter remanded to the original adjudicating authority with a direction that the respondent shall approach to the Commissioner for the same and after disposal of such matter by the Jurisdictional Commissioner the adjudicating authority shall pass a fresh order - appeal allowed by way of remand.

Summary

Issues:
Appeal against Order-in-Appeal by Commissioner (Appeals) - Misdeclaration of production under Central Excise Tariff Act 1985 - Application of compounded levy scheme - Allegation of lapses in compliance with rules - Power to condone lapses under Rule 96ZM - Jurisdiction of Commissioner (Appeals) to exercise such power.

Analysis:
The appeal before the Appellate Tribunal CESTAT Mumbai involved a dispute regarding the misdeclaration of production by an appellant engaged in embroidery on fabrics under the Central Excise Tariff Act 1985. The appellant was operating under a compounded levy scheme and was found to have debited central excise duty incorrectly for the number of machines in operation. The original authority confirmed the demand for duty, interest, and penalty, leading the appellant to file an appeal before the Commissioner (Appeals). The Commissioner (Appeals) allowed the appeal, citing lapses in compliance with Rule 96ZM and directing payment of duty as per the applicable compounded levy rates. The revenue challenged this decision, arguing that the Commissioner (Appeals) exceeded their jurisdiction by condoning the lapses under Rule 96ZM, a power reserved for the jurisdictional Commissioner. The Tribunal concurred, holding that the Commissioner (Appeals) lacked the authority to exercise the jurisdiction of the Commissioner in condoning such lapses. Therefore, the Tribunal set aside the impugned order and remanded the matter to the original adjudicating authority for proper consideration after the jurisdictional Commissioner's decision on condonation of lapses under Rule 96ZM.

In the course of the proceedings, the revenue, represented by Shri N.N. Prabhudesai, relied on judgments such as CCE vs. Calama Industries Ltd. (2003) and CCE vs. Neminath Fabrics P. Ltd. (2010) to support their arguments. On the other hand, the respondent, represented by Shri Bharat Raichandani, cited cases like Mangalore Chemical & Fertilizers Ltd. (1991), Alstom Projects India Ltd. (2012), and CC vs. Elecon Engg. Co. Ltd. to justify the Commissioner (Appeals) exercising appellate powers in modifying the order to rectify perceived injustices. However, the Tribunal emphasized that the Commissioner (Appeals) overstepped their authority by condoning the lapses under Rule 96ZM, a power reserved for the jurisdictional Commissioner, and directed the matter to be remanded for proper consideration in light of the jurisdictional Commissioner's decision on the condonation of lapses.

In conclusion, the Appellate Tribunal CESTAT Mumbai's judgment highlighted the importance of adhering to the prescribed procedures and delineating the boundaries of authority when it comes to condoning lapses under specific rules. The decision underscored the need for proper delegation of powers and the correct application of legal provisions to ensure procedural fairness and compliance with the law in matters of excise duty assessment and appeals.