2007 (11) TMI 363 - HC - Central Excise

Whether the Appellate Tribunal and the Commissioner (Appeals) were justified in dismissing the Cross Objections filed by the assessee without considering the appeal filed by the Revenue before the Commissioner of Customs & Central Excise (Appeals) was under sub-section (4) of Section 35E of the Central Excise Act 1944? - It is also not in dispute that the assessee did not file any appeal as required under Section 35E of the Central Excise Act, 1944. However the Revenue filed an appeal before the Commissioner of Customs & Central Excise (Appeals) on the ground that classification of certain items by the Adjudicating Authority was erroneous under Section 35B(2) of the Central Excise Act, 1944. Pursuant to the appeal filed by the Revenue, the Commissioner of Customs, Central Excise (Appeals) by his notice dated 20-2-2001 called upon the assessee herein to file Cross-objections Cross objections held as not maintainable by tribunal Held that Section 35E(4) could not have been invoked by the assessee to file cross objections if suo motu power was exercised by the Commissioner of Appeals - When such cross objections were filed, it is most unfortunate that Commissioner of Appeals as well as the Tribunal without considering the fact that cross objections were filed pursuant to an appeal filed by the Revenue under Section 35E(2) of the Act have dismissed cross-objections erroneously. we have to answer the question of law in favour of the assessee and the order of the Commissioner of Appeals as well as that of the Tribunal are required to be set aside and the matter is required to be remanded to the Commissioner of Appeals only to consider cross-objections filed by the assessee after hearing both the parties

Summary

Issues:
1. Dismissal of Cross Objections by the Appellate Tribunal and Commissioner (Appeals) without considering the appeal filed by the Revenue.
2. Interpretation of Section 35E(4) of the Central Excise Act, 1944 regarding the filing of cross objections.
3. Validity of dismissing cross objections filed by the assessee in response to the appeal filed by the Revenue.
4. Application of Section 35E(4) in cases where the Revenue initiates an appeal.

Analysis:
The High Court heard the appeal by the Assessee against the order passed by the CESTAT, Bangalore, which was confirmed by the Commissioner of Customs and Central Excise (Appeals), Bangalore. The main issue raised was whether the dismissal of Cross Objections by the Appellate Tribunal and Commissioner (Appeals) without considering the appeal filed by the Revenue was justified. It was noted that the Assessee had paid a sum of duty and penalties under protest without filing an appeal as required under Section 35E of the Central Excise Act, 1944. However, the Revenue filed an appeal challenging the classification of certain items by the Adjudicating Authority, invoking Section 35B(2) of the Act.

The Commissioner of Customs, Central Excise (Appeals) called upon the Assessee to file cross objections under Section 35E(4) of the Act in response to the Revenue's appeal. Despite the Assessee filing cross objections, they were rejected on the grounds that in an appeal initiated by the Revenue, cross objections of the Assessee cannot be entertained. Subsequently, the Assessee's appeal before CESTAT was also dismissed on the basis that Section 35E(4) could only be invoked if an appeal had been filed under Section 35E of the Act, not in an appeal initiated by the Revenue.

The High Court observed that since the Revenue had filed an appeal under Section 35E(2) of the Act, the Assessee was entitled to file cross objections under Section 35E(4). The Court found it unfortunate that the cross objections were dismissed without considering this aspect. Consequently, the Court ruled in favor of the Assessee, setting aside the orders of the Commissioner of Appeals and the Tribunal. The matter was remanded to the Commissioner of Appeals to consider the cross objections filed by the Assessee after hearing both parties, thereby rectifying the erroneous dismissal of the cross objections.

In conclusion, the High Court's judgment clarified the interpretation and application of Section 35E(4) of the Central Excise Act, emphasizing the right of the Assessee to file cross objections in response to an appeal initiated by the Revenue under specific provisions of the Act.