2015 (11) TMI 148 - HC - Central Excise

Validity of revenue appeal - submissions of the appellant herein that the formation of opinion by the Commissioner before filing of appeal by Revenue is mandatory under Section 35B (2) of the Central Excise Act - Clandestine removal of goods - Held that - Any Central Excise Officer may exercise the powers and discharge the duties conferred or imposed by or under the Act or these Rules on any other Central Excise Officer who is subordinate to him, meaning thereby that the Chief Commissioner, the highest officer in the Central Excise Department is empowered to discharge the duties conferred or imposed by or under the Act or the rules on any other Central Excise Officer, who is subordinate to him. Therefore, in view of the power under Rule 3 (3) of the Central Excise Rules, the Chief Commissioner is entitled to file the appeal and, therefore, this objection raised by the assessee/appellant cannot be sustained. Nevertheless, with regard to the question of power to file appeal is concerned, it is seen from the record that no such plea was raised before the Tribunal and, therefore, we are not inclined to accept the plea at this stage - it is clear that a prayer has been made to restore the Order-in-Original passed by the Additional Commissioner of Central Excise, wherein the demand of duty invoking the larger period was taken up. The above prayer, in the considered opinion of this Court, protects the limitation of the respondent/Revenue. In such view of the matter, it cannot be contended that there was no plea of limitation raised before the Tribunal. - Decided against the assessee.

Summary

Issues:
1. Formation of opinion by the Commissioner before filing appeal under Section 35B (2) of the Central Excise Act.
2. Challenge to the finding on limitation by the Department in the appeal.

Issue 1: Formation of opinion by the Commissioner before filing appeal under Section 35B (2) of the Central Excise Act:

The appellant contended that the appeal filed by the Chief Commissioner was not maintainable under Section 35B (2) as there was no formation of opinion by the Commissioner before filing the appeal. The Tribunal remanded the matter to pass a reasoned order on merits and limitation, criticizing the Commissioner (Appeals) for not evaluating evidence properly. The Tribunal highlighted that the time-bar is determinable based on the assessee's motive of evasion. The High Court rejected the plea, stating that the issue was not raised before the Tribunal, making it invalid to raise it at that stage. Additionally, Rule 3 (3) of the Central Excise Rules empowers the Chief Commissioner to file appeals, dismissing the objection raised by the appellant.

Issue 2: Challenge to the finding on limitation by the Department in the appeal:

The Department appealed to set aside the Commissioner (Appeals) order and restore the Order-in-Original, invoking the larger duty period. The High Court noted that the Department's prayer in the appeal protected the limitation issue, contrary to the appellant's claim that no challenge to the finding on limitation was made. Consequently, the High Court ruled in favor of the Revenue, stating that the plea of limitation was indeed raised before the Tribunal. As a result, the appeal was dismissed, upholding the Tribunal's order, with no costs imposed.

This judgment addressed the issues of formation of opinion by the Commissioner before filing an appeal and the challenge to the finding on limitation by the Department. The High Court clarified the legal aspects, including the powers of the Chief Commissioner to file appeals and the significance of raising specific pleas before the Tribunal. Ultimately, the appeal was dismissed, affirming the Tribunal's decision and resolving the issues raised in the case.