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2018 (2) TMI 125 - AT - Central ExciseRectification of mistake - addition of grounds of appeal under Rule 10 of the CESTAT Procedure Rules, 1982 - Held that - the additional grounds by the applicant is that Asst. Commissioner had no jurisdiction to file appeal before the Commissioner (Appeals) as the Order-in-Original was passed by the Additional Commissioner. This issue is purely a question of law based on Section 35E(2) of the CEA, 1944. It is a settled position that the question of law can be raised at any stage - the grounds involved being question of law, is allowed to be raised at this stage when the appeal is pending for disposal - application for rectification of mistake allowed.
Issues: Addition of grounds of appeal under Rule 10 of the CESTAT Procedure Rules, 1982 based on the jurisdiction of the Asst. Commissioner to file an appeal before the Commissioner (Appeals) when the adjudication order was passed by the Additional Commissioner.
Analysis: The judgment by the Appellate Tribunal CESTAT Mumbai, delivered by Shri Ramesh Nair and Shri Raju, addressed the Miscellaneous Application seeking the addition of grounds of appeal under Rule 10 of the CESTAT Procedure Rules, 1982. The applicant argued that the appeal filed by the Asst. Commissioner before the Commissioner (Appeals) was beyond jurisdiction as the adjudication order was issued by the Additional Commissioner, as mandated by Section 35E(2) of the Central Excise Act, 1944. The applicant contended that this ground, although not raised before the Commissioner (Appeals), was a pure question of law and could be raised at this stage. The Tribunal acknowledged that the issue raised was indeed a question of law, which can be raised at any stage. Consequently, the Tribunal allowed the addition of grounds of appeal at this stage, considering the pending appeal for disposal. In response to objections raised by Shri Ajay Kumar, Ld. Addl. Commr. (AR) representing the revenue, regarding the submission of a certified copy of the order of Hon'ble Bombay High Court in a related case, the Tribunal carefully considered the submissions from both parties. The Tribunal noted that the issue at hand, concerning the jurisdiction of the Asst. Commissioner to file the appeal before the Commissioner (Appeals) based on the authority who passed the adjudication order, was a question of law as per Section 35E(2) of the Central Excise Act, 1944. The Tribunal emphasized that the legal question could be raised at any stage of the proceedings. Consequently, the Tribunal granted the Miscellaneous Application, allowing the addition of grounds of appeal, and scheduled the appeal for final hearing on a specified date. In conclusion, the judgment by the Appellate Tribunal CESTAT Mumbai highlighted the significance of the jurisdictional issue raised by the applicant regarding the authority to file an appeal before the Commissioner (Appeals) based on the adjudication order issuer. The Tribunal recognized the legal nature of the issue as a question of law, permitting the addition of grounds of appeal at the current stage of the proceedings for further consideration and final hearing.
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