2012 (8) TMI 109 - AT - Central Excise

Maintainability of appeal Held that - As per the provisions of Section 35E (2) of the Central Excise Act, the appeal against the adjudication order is to be filed by the same authority who passed the impugned adjudication order - in the present case the adjudication order is passed by the Joint Commissioner whereas the appeal is filed by the Assistant Commissioner of Central Excise - no infirmity in the impugned order passed by the Commissioner (Appeals).

Summary

Issues:
Appeal against impugned order - Jurisdiction of filing appeal under Section 35E(2) of Central Excise Act

Analysis:

1. The appeal before the Appellate Tribunal CESTAT, Mumbai was filed by the Revenue against the impugned order passed by the Commissioner (Appeals). The Commissioner (Appeals) had held that as per Section 35E(2) of the Central Excise Act, the appeal against the adjudication order should be filed by the same authority who passed the impugned order. In this case, the adjudication order was passed by the Joint Commissioner, but the appeal was filed by the Assistant Commissioner of Central Excise.

2. The Tribunal examined the provisions of Section 35E(2) during the relevant period, which allowed the Commissioner of Central Excise to call for and examine the record of any proceeding where a subordinate adjudicating authority had passed a decision. The Commissioner could direct such authority to apply to the Commissioner (Appeals) for the determination of points arising from the decision.

3. Referring to a judgment by the Bombay High Court in the case of CCE vs Silver Streak Welding Products India Pvt Ltd, the Tribunal noted that the High Court had interpreted Section 35E(2) to mean that the appeal must be filed by the same authority who passed the adjudication order. Based on this interpretation and precedent, the Tribunal found no fault in the impugned order passed by the Commissioner (Appeals).

4. Consequently, the Tribunal dismissed the appeal filed by the Revenue and also disposed of the Cross Objection in the same terms. The decision was made based on the specific jurisdictional requirement outlined in Section 35E(2) of the Central Excise Act and the interpretation provided by the Bombay High Court in a relevant case.

This detailed analysis of the judgment highlights the key issues related to the jurisdiction of filing appeals under the Central Excise Act and the specific requirements outlined in Section 35E(2) as interpreted by the Bombay High Court. The Tribunal's decision was based on legal provisions and precedent, ultimately leading to the dismissal of the appeal.