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2014 (5) TMI 24 - HC - Central ExciseAlternative remedy - whether Section 35(1)(b) of the Central Excise Act, 1944 (hereinafter referred to as “the Act”) confers an alternative remedy of appeal, against an order passed by the Commissioner (Appeals), under Section 35F of the Act. - Held that:- An assessee aggrieved by an order, passed by an Assessing authority, may file an appeal under Section 35 of the Act. Section 35A of the Act enumerates the procedure for filing and deciding an appeal. The power to entertain and decide an appeal and as a consequence to pass final and interim orders flows from Section 35 and Section 35A of the Act. Section 35F of the Act, which requires an assessee to pre-deposit the amount demanded by the revenue and empowers the Commissioner (Appeals) to waive the amount so demanded, is integral to the scheme of appellate powers conferred by Section 35 and Section 35A of the Act. Section 35F of the Act commences with the words, “... where in any appeal under this Chapter ...” thereby leaving no ambiguity that power under Section 35F can only be exercised when an appeal has already been filed under Chapter VIA. Section 35F of the Act thus can only be invoked if an appeal has already been filed. We, therefore, hold that an order passed by the Commissioner (Appeals) exercising power under Section 35F, is an order passed in an appeal filed under Section 35 read with Section 35A of the Act and shall be appealable to the CESTAT as an order appealable under Section 35B(1)(b) of the Act. A perusal of the judgment in Hindustan Lever Ltd.’s case (supra) reveals that significance of the opening words of, namely, “... where in any appeal under this Chapter ...” were not noticed or considered. Petitioners are relegated to their alternative remedy of filing an appeal before the CESTAT. In case such appeal is filed within two months from today, the delay, if any, on account of pendency of this writ petition shall be considered sympathetically.
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