2017 (6) TMI 993 - AT - Central Excise

Natural justice - denial of cross examination of chemical examiner of CRCL - Held that - If each and every interim order passed during the adjudication proceedings by the adjudicating authority is appealed before the Tribunal, it would go against the meaning object and purposes expressed by the wordings finding place in the provisions of Section 35B(1) of CEA, 1944. The subject letter simply conveying the decision of adjudicating authority by Supdt. (Adj.) is mere information without any details, backgrounds, reasons etc. and the Tribunal cannot pass any order against such an order. This is not an appealable order in terms of the provisions of Section 35B(1) of CEA, 1944. This appeal therefore is a pre-mature one on the part of the appellant - the Tribunal on similar issue in the case of Delta Overseas Vs. CCE 2015 (7) TMI 1091 - CESTAT NEW DELHI has held that when there is no adjudication order passed by the competent authority under the Statute there cannot be any appeal against interim order/communication passed during those proceedings - appeal is dismissed as pre-mature and non-maintainable - decided against appellant.

Summary

Issues:
- Denial of request for cross-examination of chemical examiner by the competent authority.
- Appeal filed before the Tribunal against the denial.

Analysis:
The appellant, M/s Ashok & Co. Pan Bahar Ltd., approached the Tribunal against the denial of their request for cross-examination of the chemical examiner by the competent authority. The department had issued a Show Cause Notice proposing a change in the classification of goods manufactured by the appellant. The appellant, after filing an interim reply to the Show Cause Notice, sought cross-examination of the chemical examiner. However, the Supdt. (Adj.) conveyed the denial of this request to the appellant. The Tribunal considered the appeal under Section 35B of the Central Excise Act, 1944, which allows appeals against decisions or orders passed by the Commissioner, Central Excise as an adjudicating authority. The Tribunal noted that the denial of cross-examination by the competent authority did not constitute a complete order that could be appealed under Section 35B(1) of the Act. It was emphasized that appealing every interim order during adjudication proceedings would not align with the purpose of the legislation. The Tribunal concluded that the denial of cross-examination was not an appealable order, making the appeal premature.

In a similar case, the Tribunal in Delta Overseas Vs. CCE held that without an adjudication order passed by the competent authority, there cannot be an appeal against interim orders or communications during proceedings. The Tribunal clarified that the communication from the Assistant Commissioner (Adjudication) could not be considered a decision or order passed by the Commissioner (Customs), the Adjudicating Authority. Therefore, appealing such communication was premature until the actual order of rejection of the cross-examination request was passed and communicated. Citing this precedent, the Tribunal dismissed the appeal as premature and non-maintainable, following the principles established in the Delta Overseas case. The appeal was thus dismissed on the grounds of being premature and not maintainable.

In conclusion, the Tribunal found that the denial of the request for cross-examination of the chemical examiner did not constitute an appealable order under the Central Excise Act, 1944. The appeal was deemed premature and non-maintainable based on established legal principles and precedents. The appellant's appeal against the denial was dismissed by the Tribunal.