9911796707
TMI Blog2011 (1) TMI 990X X X X Extracts X X X X X X X X Extracts X X X X ..... on list, classifying their products under Chapter Heading 85.04 of the CETA, 1985 attracting Central Excise duty @ 5%. The said classification list was not accepted by the department and a show-cause notice was issued to classify their product under Chapter Heading 85.37 and 85.43 attracting duty @ 20% and 25% respectively. The classification was finally decided in favour of the appellants against the said order. The department preferred an appeal before the Commissioner (Appeals), who also confirmed the classification list filed by the appellants as their product is classifiable under Chapter Heading 85.04. 3. During this period the appellants were clearing their goods @ 20%/25% under protest and after decision of the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edit on the strength of GP1 s @ 20% to 25%. This order is only on presumption and not on the basis of any evidence, hence, the said order is liable to be rejected. In support to his contention that the appeal is in contravention of provisions of Section 35E (2) of Central Excise Act, which provides how the appeal is to be filed by the Revenue before the higher authorities. To support his contention, he placed reliance on the decisions of Mrinal Kanti Sarkar Vs. CC (Prev.), West Bengal, reported in 2001 (135) ELT 1018 (Tri.Kolkata), CCE, Mumbai Vs. Interscape reported in 2009 (239) ELT 283 (Tri-Mumbai), Dhampur Sugar Mills Co. Ltd., Vs. CCE, Meerut, reported in 1999 (108) ELT 498 (Tribunal), CCE Vs. Silver Streak Welding Products India Pvt L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e have also seen the authorization given by the Commissioner, who filed the appeal before the Commissioner (Appeals) against the sanction of the refund claim of the appellants after exercising his power under Section 35E(2) of the Central Excise Act, 1944 to authorise the Assistant Commissioner of Central Excise, Nasik. We have also seen the provisions of Section 35E(2) and Section 35E(4) of the Act read as follows:- 35E. Powers of Board or Commissioner of Central Excise to pass certain orders. (1) xxxxxxx (2) The Commissioner of Central Excise may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authorities subordinate to him has passed any decision or order under this A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hon ble High Court of Bombay in the case of Silver Streak Welding Products India Pvt Ltd., (supra), wherein the Hon ble High Court has held that in Section 35E (2) of the Act, the power could have been conferred only to the adjudicating authority not to any other officer. Following the same ratio, we are of the view that in this case, the Asst. Commissioner was not the adjudicating authority, who has filed the appeal before the Commissioner (Appeals) and the Commissioner (Appeals) has not dealt the same in accordance to law. Hence, the appeal filed by the Revenue before the Commissioner (Appeals) is not maintainable, following the decision of Maza Cosmetics (supra) and Silver Streak Welding Products India Pvt Ltd., (supra). The case laws re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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