2005 (8) TMI 518 - AT - Central Excise

Summary

Issues involved:
1. Commissioner's power to expunge remarks in Order-in-Original under Section 35A of the Central Excise Act, 1944.
2. Appeal by Department against expunging remarks.
3. Appeal by assessee regarding interest claim.

Analysis:

Issue 1: Commissioner's power to expunge remarks in Order-in-Original under Section 35A of the Central Excise Act, 1944:
The Department filed an appeal (Appeal No. E/410/03) challenging the Commissioner (Appeals) decision to expunge remarks in the Order-in-Original. The Department argued that the Commissioner did not have the authority to expunge remarks as per sub-section 3 of Section 35A of the Central Excise Act, 1944. However, the Tribunal noted that the Commissioner has the power to confirm, modify, or annul the decision or order appealed against. The Tribunal interpreted that expunging remarks amounts to a modification of the order, which falls within the Commissioner's authority. The provision also allows the Commissioner to expunge any decision or finding considered irrelevant or illegal. Additionally, the Tribunal highlighted a previous successful appeal by the assessee regarding interest, indicating that the Department's appeal was not sustainable based on the Tribunal's decision.

Issue 2: Appeal by Department against expunging remarks:
The Tribunal found that the Department's appeal (Appeal No. E/410/03) was not sustainable due to the Commissioner's authority to modify the order by expunging remarks. The Tribunal referenced a previous appeal where the assessee was successful in claiming interest, further supporting the dismissal of the Department's appeal.

Issue 3: Appeal by assessee regarding interest claim:
The assessee filed an appeal (Appeal No. E/327/03-Mum.) challenging the rejection of the interest claim by the Commissioner (Appeals). However, the Tribunal deemed this appeal infructuous as the Tribunal had already considered the interest claim in a separate appeal. Therefore, the Tribunal disposed of the first appeal as not sustainable and the second appeal as infructuous. Consequently, the Departmental appeal was rejected, and the appeal filed by the assessee was also considered infructuous. Both appeals were disposed of accordingly.

In conclusion, the Tribunal upheld the Commissioner's power to expunge remarks in the Order-in-Original, dismissed the Department's appeal, and deemed the appeal by the assessee regarding interest claim as infructuous based on previous Tribunal decisions.