9911796707
TMI Blog2008 (3) TMI 564X X X X Extracts X X X X X X X X Extracts X X X X ..... on, appeals are allowed. - E/365 and 366/2007 - A/368-369/2008-WZB/AHD - Dated:- 3-3-2008 - Ms. Archana Wadhwa, J. REPRESENTED BY : Shri H.G. Dharmadhikari, Advocate, for the Appellant. Shri D.S. Negi, S.D.R., for the Respondent. [Order]. - The appellant is engaged in the manufacture of iron and steel products falling under Chapters 72 and 73 of Central Excise Tariff Act, 1985. They were issued a show cause notice on 10-7-98 alleging clandestine removal and proposing to confirm duty of Rs. 2,55,254/- and for denial of Modvat credit of Rs. 1,56,668/-. On adjudication, the Joint Commissioner vide his order dated 23-3-99 disallowed the Modvat credit, as proposed in the show cause notice and also imposed penalties on the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us Application No. 2313 of 2004 before the Hon ble Tribunal along with the Condonation application on 29-9-04. The said application was heard by the Hon ble Tribunal on 2-2-2005. After condoning the delay, the Hon ble Tribunal has categorically held that since the adjudication has been done by the Joint Commissioner, the same is not as per the direction as contained in the said Circular and the miscellaneous application is liable to be allowed on the ground of jurisdiction and accordingly, the said order-in-original was set aside vide Order No. M-60/WZB/2005/C-IV, dated 2-2-2005. 3. Thereafter, the matter was taken up by the Commissioner, and the impugned order stands passed by him confirming duty and imposing penalty. The said order is i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew that the case should have been adjudicated by the original authority at the level of Commissioner/Additional Commissioner. The miscellaneous application filed by the appellant is allowed to the above extent. 6. As is seen from the above, though the Tribunal has observed that the case should have been adjudicated by the Commissioner/Deputy Commissioner, there are no such directions to re-adjudicate, in the said order of the Tribunal. The application praying for setting aside the impugned orders passed earlier stands allowed by the Tribunal without any direction of remand. I find that an identical situation was considered by the Hon ble Madras High Court in the case of Collector of Central Excise, Madras v. V.K. Palappa Nadar - 2000 (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed of the matter on a preliminary ground. The preliminary ground may embrace a diversity of reasons. It may be one of lack of jurisdiction in the original Tribunal; it may be one of limitation, or it may be one of a defect of procedure, going to the very root of the decision. On one or more of these preliminary grounds, a decision allowing an appeal, without going into the merits, can be given by an appellate quasi judicial Tribunal. Therefore by reason of the disposal in this case, without going into the merits, it will not be proper to spell out an order of remand. We cannot also go into any collateral circumstances, to interpret the terms of the appellate order. The terms of the appellate order are, in our opinion, not sufficient for be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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