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TMI Blog2013 (11) TMI 1522X X X X Extracts X X X X X X X X Extracts X X X X ..... ed against any order-in-original passed by authority lower than Commissioner of Central Excise. In this case the said letter dated 1-2-11 is a direction of Commissioner of Central Excise which cannot be contested before Commissioner (Appeals) and this authority. - Decided against assessee. - F.No. 195/648/11-RA - Order No. 1386/2013-CX - Dated:- 25-11-2013 - Shri D.P. Singh, Joint Secretary Ms. Swati Gupta, Advocate, for the Appellant. Nobody, for the Respondent. ORDER This revision application is filed by M/s. Kurele Pan Products (P) Ltd., Ghaziabad against order-in-appeal No. 46-C.E./GZB/2011-12, dated 29-4-2011 passed by the Commissioner of Central Excise (Appeals), Ghaziabad with respect to letter dated 1-2-2011 passed by the Additional Commissioner of Central Excise, Ghaziabad. 2. Brief facts of the case are that the applicant was engaged in the manufacture of Gutkha. On 30-5-2006 a search operation was conducted by the departmental officers in the factory premises of the applicant. During the course of search, the department found 15,800 kgs of loose Gutkha valuing ₹ 31,60,000/- lying in the factory premises. The departmental officer seized the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Central Excise that your remission request was already rejected by Deputy Commissioner of Central Excise. 3. Being aggrieved by the said letter dated 1-2-2011, the applicant filed appeal before Commissioner (Appeals) who rejected the same by holding that the appeal filed before him was beyond jurisdiction as the impugned order was issued with approval of competent authority i.e. Commissioner of Central Excise, Ghaziabad and as such, it was the decision of Commissioner of Central Excise and appeal against such decision lies before CESTAT. 4. Being aggrieved by the impugned order-in-appeal, the applicant has filed this revision application under Section 35EE of Central Excise Act, 1944 before Central Government on the following grounds :- 4.1 The Commissioner (Appeals) failed to appreciate that admittedly, the loose gutkha was seized by the department on 30-5-2006. Thus, the gutkha manufactured in May 2006 cannot even be presumed to be fit for human consumption at present in the year 2011. Under these circumstances, the Commissioner (Appeals) ought to have granted the permission to the applicant for destruction of the said goods which have become unfit for human consu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the present case, has not acted as an adjudicating authority which is quite apparent from the bare perusal of the letter dated 1-2-2011 issued by the Additional Commissioner (Tech.). In fact this, at best, can be considered to be decision taken by Additional Commissioner (Tech.) and as the application was filed by the applicant before the Commissioner, therefore, reference of such communication was made to the Commissioner also. Therefore, the applicant cannot file any appeal before the Hon ble Tribunal under the provisions of Section 35B of the Central Excise Act, 1944 and therefore, the Commissioner (Appeals) ought to have entertained the appeal of the applicant on merits. Even otherwise, if the Commissioner (Appeals) was of the considered view that appeal lies before the Hon ble CESTAT, he would have granted liberty to the applicant to file appropriate proceedings before the Hon ble CESTAT. 6. Government has carefully gone through the relevant case records, oral written submissions and perused impugned order-in-original and order-in-appeal. 7. Government observes that the applicant had filed application dated 23-4-2010 before CCE, Ghaziabad seeking remission of duty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1. Commissioner Without limit, but normally any amount exceeding Rs. 5,000 - 2. Additional/Joint Commissioner Rs. 2,500 to Rs. 5,000 - 3. Deputy/Assistan Commissioner Rs. 1,000 to Rs. 2,500 Exceeding Rs. 20,000 4. Superintendent Below Rs. 1,000 Rs. 5,000 but not exceeding Rs. 20,000 5. Inspector None Below Rs. 5,000 8.2 From above, it is ample clear that Commissioner of Central Excise is competent authority in the impugned case as the amount involved was more than ₹ 5,000. As such, the decision in impugned case on request of applicant was to be taken by Jurisdictional Commissioner of Central Excise. 8.3 The letter dated 1-2-11 of Additional Commissioner of Central Excise states as under : Please refer to your letter dated 23-4-2010, addressed to the Commissioner Central Excise, Ghaziabad, on the captioned subject whereunder a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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