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TMI Blog2016 (8) TMI 290X X X X Extracts X X X X X X X X Extracts X X X X ..... 2646-52647/2016 - Dated:- 27-7-2016 - Ms. Archana Wadhwa, Member (Judicial) And Shri V. Padmanabhan, Member (Technical) Shri G.R. Singh, DR for the Revenue Shri S.S. Dabas, Advocate for the Party ORDER Per Archana Wadhwa As per facts on record, proceedings initiated against the assessee resulted in passing of an order by the Original Adjudicating Authority, who confirmed the demand of duty to the extent of ₹ 1,73,246/-. In addition, he confirmed interest and imposed penalty of ₹ 80,000/- on the assessee in terms of Rule 25 of the Central Excise Rules, 2001 read with Section 11AC of Central Excise Act, 1944. 2. The said order of the Assistant Commissioner was challenged by the Revenue before Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Central Excise Act, 1944 relate to the powers of the Revenue to file an appeal against an order of the Adjudicating Authority. It was in exercise of these powers that the Revenue filed an appeal before the Commissioner (Appeals) against the order of the Original Adjudicating Authority. Sub-section 4 of Section 35E is to the following effect: Where in pursuance of an order under sub-section(1) or sub-section(2) the adjudicating authority or the authorized officer makes an application to the Appellate Tribunal or the 10[Commissioner (Appeals) within a period of three months from the date of communication of the order under sub-section (1) or sub-section (2) to the adjudicating authority, such application shall be heard by Appellate T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be disposed of by the Tribunal as if it was an appeal presented within time, even though initially, no separate appeal stand filed by the assessee. The provisions of section 35B (4) have been specifically made applicable to the appeals filed before the Commissioner of Central Excise (Appeals). As such a joint reading of both the provisions of law lead us to inevitable conclusion that the cross-objections filed before the Commissioner (Appeals) are required to be considered as an appeal made by the assessee, even though separate appeal was initially not filed. 7. Ld. DR appearing for the Revenue has brought to our attention the Tribunal s decision in the case of GEE KAY Enterprises Vs. Commissioner of Central Excise Bangalore-I [2004 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. To the similar effect is the Tribunal decision in the case of Commissioner of Central Excise, Bhopal Vs. Optal Telecommunication Ltd. [2006 (4) S.T.R. 91 (Tri.-Del). 10. We also find that the Hon ble Karnatka High Court in the case of Southern Auto Products Vs. Commissioner of Central Excise, Bangalore-I 2009 (244) ELT 348 (Kar.) has considered an identical issue and has held that cross-objections filed by the assessee before Commissioner (Appeals) are required to be disposed of as an appeal filed by the assessee. Inasmuch as the issue stands decided by the Hon ble Karnataka High Court, we are bound to follow the same. Accordingly, we set aside the impugned order and remand the matter to Commissioner (Appeals), for fresh decision on t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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