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TMI Blog2019 (2) TMI 942X X X X Extracts X X X X X X X X Extracts X X X X ..... antum of penalty being subject matter of the appeal before the Tribunal was less than ₹ 2,00,000/-; the Tribunal did not have discretion to refuse to admit the appeal and non-suit the appellant, by holding its appeal as not maintainable. The impugned order dated 31.10.2017 passed by the Tribunal being contrary to the unequivocal statutory provision, deserves to be quashed and set aside - appeal allowed. - D.B. Central excise Appeal No. 26/2018 - - - Dated:- 25-1-2019 - Mr. Justice Sangeet Lodha And Mr. Justice Dinesh Mehta For the Appellant(s) : Mr. Jagat Tatia For the Respondent(s) : Mr. Falgun Buch JUDGMENT Reportable 25/01/2019 I.A. No.1/2019 By way of the present application, the appellant has s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration before the members of the Tribunal, they declined to entertain the appeals relying upon clause (ii) of the second proviso to Section 35-B of the Central Excise Act, 1944; as the amount of penalty involved in each of the appeal was less than ₹ 2,00,000/-. Mr. Jagat Tatia, learned counsel for the appellant highlighting that the order dated 25.05.2016 impugned in the appeal before the Tribunal was passed by the Commissioner as an adjudicating authority, contended that second proviso to Section 35-B was not applicable in the present case. He argued that the Tribunal has fallen into apparent error of law in rejecting appellant s appeal as not maintainable. Mr. Falgun Buch on the other hand meekly submitted that though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6, passed by the Commissioner of Central Excise Jaipur II. Hence, at least this factual position was clear to the Tribunal that the appeal before it was an appeal under clause (a) of sub-section (1) of Section 35-B of the Act. Now we proceed to consider the relevant provision of Section 35B of the Act of 1944, which are being reproduced hereinfra for ready reference:- 35-B. Appeals to the Appellate Tribunal (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order - (a) a decision or order passed by the Principal Commissioner of Central Excise or Commissioner of Central Excise as an adjudicating authority; (b) an order passed by the [Commissioner (Appeals)] u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e thereunder and such order is passed by the Commissioner (Appeals) on or after the date appointed under section 109 of the Finance (No.2) Act, 1998: Provided further that the appellate Tribunal may, in its discretion, refuse to admit an appeal in respect of an order referred to in clause (b) or clause (c) or clause (d) where- (i) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or (ii) the amount of fine or penalty determined by such order, does not exceed[two lakh rupees]. Learned members ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has passed the impugned order dated 25.05.2016 as an Adjudicating Authority does not require any deliberation, inasmuch as it is the first order, captioned as order in original. We unhesistently hold that clause (ii) of second proviso to Section 35-B is not applicable in the present case and hence regardless of the fact that the quantum of penalty being subject matter of the appeal before the Tribunal was less than ₹ 2,00,000/-; the Tribunal did not have discretion to refuse to admit the appeal and non-suit the appellant, by holding its appeal as not maintainable. The impugned order dated 31.10.2017 passed by the Tribunal being contrary to the unequivocal statutory provision, deserves to be quashed and set aside; which we hereby ..... X X X X Extracts X X X X X X X X Extracts X X X X
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