TMI Blog2007 (11) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... the Adjudicating Authority was erroneous under Section 35B(2) of the Central Excise Act, 1944. Pursuant to the appeal filed by the Revenue, the Commissioner of Customs, Central Excise (Appeals) by his notice dated 20-2-2001 called upon the assessee herein to file Cross-objections – Cross objections held as not maintainable by tribunal – Held that Section 35E(4) could not have been invoked by the assessee to file cross objections if suo motu power was exercised by the Commissioner of Appeals - When such cross objections were filed, it is most unfortunate that Commissioner of Appeals as well as the Tribunal without considering the fact that cross objections were filed pursuant to an appeal filed by the Revenue under Section 35E(2) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Rules, 1944. The said amount was deposited by the assessee under protest without prejudice to the rights of the assessee to file an appeal. It is also not in dispute that the assessee did not file any appeal as required under Section 35E of the Central Excise Act, 1944. However the Revenue filed an appeal before the Commissioner of Customs Central Excise (Appeals) on the ground that classification of certain items by the Adjudicating Authority was erroneous under Section 35B(2) of the Central Excise Act, 1944. Pursuant to the appeal filed by the Revenue, the Commissioner of Customs, Central Excise (Appeals) by his notice dated 20-2-2001 called upon the assessee herein to file Cross-objections, if any, within 45 days from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee was called upon to file cross objections under Section 35E(4) of the Act. When such cross objections were filed, it is most unfortunate that Commissioner of Appeals as well as the Tribunal without considering the fact that cross objections were filed pursuant to an appeal filed by the Revenue under Section 35E(2) of the Act have dismissed cross-objections erroneously. 6. In the circumstances, we have to answer the question of law in favour of the assessee and the order of the Commissioner of Appeals as well as that of the Tribunal are required to be set aside and the matter is required to be remanded to the Commissioner of Appeals only to consider cross-objections filed by the assessee after hearing both the parties. Only to this limit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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