2021 (8) TMI 722 - HC - Central Excise

Jurisdiction - power of similar rank person to pass an order - impugned order has been passed by the Joint Secretary (Revision Application), Government of India, who was also in the same rank of Commissioner of Central Excise and Customs, who had passed the Order-In-Appeal - Section 35 EE of the Central Excise Act, 1944 - HELD THAT - Reliance placed on the decision of this Court in S. MOINUDDIN VERSUS JOINT SECRETARY, THE COMMISSIONER OF CUSTOMS (APPEAL) , THE JOINT COMMISSIONER OF CUSTOMS, THE PRINCIPAL COMMISSIONER OF CUSTOMS, CHENNAI. 2017 (1) TMI 1757 - MADRAS HIGH COURT , where this Court has interfered with the order that had been impugned therein in respect of similarly placed persons on that sole ground and had directed the matter to be heard by an authority after taking corrective measures in that regard. The matter is remitted to the present Revisional Authority under Section 129 DD of the Act for fresh consideration of the matter - petition allowed by way of remand.

Summary

Issues:
Challenge to order under Section 35 EE of the Central Excise Act, 1944 - Jurisdictional error in passing the order - Remittal to Revisional Authority for fresh consideration.

Analysis:
The Writ Petition before the Madras High Court challenged an order dated 29.06.2012 passed by the first respondent, rejecting the revision application filed by the petitioner under Section 35 EE of the Central Excise Act, 1944. This revision application was filed against the Order-In-Appeal No.54/2010-CE SLM dated 23.09.2010 and 55-60/2010(CE) SLM dated 27.09.2010 passed by the Commissioner of Central Excise (Appeal), Salem. The petitioner contended that the order was passed by a Joint Secretary who held the same rank as the Commissioner of Central Excise and Customs, which was impermissible in law. Citing a previous decision, the petitioner argued that a similar situation had been addressed by the court previously, leading to the reconstitution of the Revisional Authority. The Senior Panel Counsel for the respondents acknowledged the anomaly and informed the court that corrective measures had been taken by reconstituting the Revisional Authority.

The High Court, after considering the submissions, quashed the impugned order and remitted the matter to the present Revisional Authority under Section 129 DD of the Act for fresh consideration. The court directed the Revisional Authority to provide a full opportunity of hearing to the petitioner, address each contention raised, and issue reasoned orders in compliance with the law. The Revisional Authority was instructed to approach the matter without influence from the previously set aside order. The court concluded the judgment by ordering the Writ Petition on the aforementioned terms, without imposing any costs on either party.