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TMI Blog2013 (1) TMI 225X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act.The respondent is right in relying on sub-sections (5) and (6) of section 35EE to point out that in case the Central Government suo motu decides to issue notice to the assessee to enhance the penalty or fine or duty and after hearing the assessee decides to drop the proceedings, no grant of any opportunity to the Commissioner of Central Excise or any other officer executing the Act is envisaged. This shows that if the Central Government is of the view that the order of the Commissioner (Appeals) is legal and proper and requires no interference (by way of enhancement of duty, fine or penalty), there is no right conferred upon the Commissioner of Central Excise to challenge the decision to drop the proceedings. If the Commissioner of Central Excise chooses to take the appeal route against the order of the Commissioner (Appeals) to the CESTAT, he may lawfully pursue his challenge right up to the Supreme Court. But if he chooses to take the revisionary route and question the legality and propriety of the order of the Commissioner (Appeals) before the Central Government under section 35EE, he must, if the decision of the Central Government goes against him, accept it as fina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excise, Delhi-II, being dissatisfied with the appellate order passed by the Commissioner (Appeals), directed the Asst. Commissioner (Tech.) to file a revision application before the Central Government in terms of Section 35EE(1A). A revision application was accordingly filed, reiterating the same grounds on which an appeal was preferred by the petitioner herein in the appeal filed before the Commissioner (Appeals). 5. By order dated 11.09.2009 in Office order No. 316/09-CX, the Central Government dismissed the revision application. After a detailed examination of the facts and the contentions and on a survey of the relevant case-law, the Central Government, acting through the Joint Secretary to the Government of India, upheld the order of the Commissioner (Appeals). The operative portion of the order in revision is as under: From the perusal of the records, Govt. observes that the Commissioner (Appeals) has already passed a very detailed and reasoned order. Govt. agrees with the findings in said order and finds no reason to interfere with the said impugned order-in-appeal. 11. In view of the above discussions findings, Govt. observes that the rebate was admissible in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Government, of its own motion, to annul or modify any order referred to in sub-section (1). Sub-section (5) provides for enhancement of penalty or fine by the Central Government subject to certain conditions. Sub-section (6) makes similar provision for enhancement of duty. No appeal, either by the assessee or by the Commissioner of Central Excise, against the order passed by the Central Government under section 35EE to the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) has been provided by the Act. The order of the Central Government passed in revision is thus final, subject only to judicial review under Article 226/227 of the Constitution of India. 9. The preliminary objection seems to us to be well-taken. The order passed by the Central Government under section 35EE cannot be challenged or questioned by a functionary of the Central Government. The Act is a central Act. The functionaries under the Act, such as the Assistant Commissioner, Deputy Commissioner, Joint Commissioner, Additional Commissioner, Commissioner of Central Excise, Commissioner (Appeals) or Chief Commissioner of Central Excise are all functionaries under the Central Government, executing the Ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bench of the Bombay High Court in CCE, Nagpur v Indorama Textiles Ltd., 2006 (204) E.L.T. 222 (Bom.) a decision cited on behalf of the petitioner, where the Division Bench pointed out the distinction between an executive or administrative order passed by the Central Government and a quasi-judicial order passed by it; it was held that in the latter case, the Central Government (the revisionary authority) acts as a quasi-judicial Tribunal and so its order would be amenable to the jurisdiction under Article 226 at the instance of the aggrieved party, be it the Central Government itself. This decision limits itself to the nature of the order passed by the revisionary authority under section 35EE and, with respect, does not examine the further question, necessarily to be answered, whether the Central Government can both be the author of the decision and also the aggrieved party. It is true and in this aspect we respectfully agree with the Bombay High Court that the order passed under section 35EE is quasi-judicial in nature; but in our view, whether the order is administrative or is quasi-judicial, the basic principle is that one cannot be said to be aggrieved by one s own order an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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