9911796707
TMI Blog2000 (3) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... 170/99 (M-II), dated 26-11-1999 passed by the Commissioner (Appeals) wherein he has held that since the order in original itself was passed by the Commissioner of Central Excise concerned, no appeal would lie against the said order before the Commissioner (Appeals). It was, therefore, held that the appeal before him was not maintainable in law. 2. Appeal No. ST/4/99 is another appeal by the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be assessed under this Chapter, or by an order levying interest or penalty under this Chapter, may appeal to the Commissioner of Central Excise, (Appeals)" 3. She submits that since order in original was passed under Section 73 which fact is not disputed, therefore, the appeal to Commissioner (Appeals) is available under Section 85(1) extracted above. There is no room for any other criter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the original authority on whose decision he sits in judgment. In this case, since the order in original has been passed by the Commissioner of Central Excise as the original authority, therefore, the Commissioner (Appeals) who is the same rank and status cannot sit in judgment over the said order of the Commissioner of Central Excise as this would violate the above mentioned cardinal principle. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arly follows that the appeal does not lie to the Tribunal under Section 86(1) but to the Commissioner (Appeals) under Section 85 (1) ibid. In this conclusion we are supported by the decision of the Tribunal in the case of Bharati Cellular Ltd. (supra). 7. The learned DR has submitted that it is the cardinal principle of the appellate machinery that the appellate authority should be higher in rank ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n view of our applying the ratio of the decision cited supra we set aside the impugned order in appeal and remand the matter to the Commissioner (Appeals) for de novo consideration of the appeal before him on merits in view of our findings that he has jurisdiction to do so. 9. Before considering the appeal before him on merits, the Commissioner (Appeals) is also required to consider their stay ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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