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TMI Blog2011 (2) TMI 655X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal to record a finding on the following limited question of law, after affording opportunity of hearing to the parties: “Whether the appeal filed by the Revenue was not maintainable as there was no proper review or authorization in accordance with Section 35B(2) of the Act. 1944? X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to excise duty under Chapter 72 of the Central Excise Tariff. A search was conducted in the appellant's premises and 150.110 MT of sponge iron was found short and 102 MT of MS ingots were found in excess of the balance in the RG-1 Register. Some loose sheets (daily sheets) were found from security officer's room at the factory gate which contained details of dispatch of finished goods. Statements of Shri Sandeep Agrawal, AGM and Shri P.K. Sarkar, Chief Security Officer of the appellant company were recorded under Section 11 of the Act, 1944 and a show cause notice dated 3-8-2008 (Annexure P/1) was issued for confiscation of excess stock recovery of central excise duty with interest towards sponge iron found short under Section 11AB, for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fiscation. 6. Learned Tribunal has disposed of the aforesaid appeals by the common impugned order in the following terms : (a) the part of the impugned order modifying the order-in-original is set aside, the order-in-original is restored and the Revenue's appeal No. 2494/07- SM is allowed; and (b) the part of the impugned order upholding the duty demand on shortage of 155.11 MT of sponge Iron and imposition of penalty of Rs. 50,000/- on the Appellant is upheld and the Appellant's appeal No. E/2785/07-SM is dismissed. 7. Learned counsel for the appellant submitted that the appellant herein had challenged maintainability of the respondent's appeal before the learned Tribunal on the ground that review of the order-in-appeal dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and, Shri Bhishma Kinger, learned counsel for the respondent/Revenue, would argue that from perusal of the impugned order of Annexure P/7, it would be evident that the Tribunal has decided the merits of the appellant's Central E. Appeal No. 2785 of 2007-SM. The appeal preferred by the Revenue has not at all been considered and there is no adverse effects on the rights of the appellant's company on account of entertaining the Revenue's appeal and therefore, objection of the appellant based on Section 35B of the Act, 1944 is meaningless. 10. Heard learned counsel for the parties. 11. In the matters of Shree Ganesh Dyeing & Ptng Works - 2008 (232) E.L.T. 775 (Guj.) = 2010 (18) S.T.R. 353 (Guj.) interpreting Section 35B(2) of the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so, the two members of the Committee of Commissioners reviewed the order-in-appeal dated 31-5-2007 on two different dates i.e. 7-9-2007 and 10-9-2007. There is no substance In the argument of Shri Kinger that the appellant is not affected by mere filing of the appeal by Revenue, as from perusal of the impugned order we find that the Tribunal allowed the Revenue's appeal and set aside the order of the Commissioner, whereby order-in-original was modified and the order-in- original was restored. From the impugned order, we find that the Tribunal has not even cared to consider the objection of the appellant with regard to maintainability of the Revenue's appeal. 16. In these circumstances, we hold that the substantial question of law, as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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