TMI Blog2009 (9) TMI 357X X X X Extracts X X X X X X X X Extracts X X X X ..... and to come to a rational conclusion. When governing facts and surrounding circumstances suggest fate of the fact, there is no question of any assumption or presumption which are sworn enemies of justice. Therefore, learned Commissioner (Appeals) after granting fair opportunity to both the sides shall properly consider weight of evidence and pleadings of both sides and pass a reasoned and speaking order on both the aspect of merit as well as on limitation issue, which have emanated from cause of action. In the result, we remand the matter to the learned lower appellate authority to pass appropriate order in accordance with law. The appeal is allowed by way of remand. - E/604/2002 - 1235/2009 - Dated:- 9-9-2009 - Dr. Chittaranjan Sata ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to Revenue. 3. While grievance of Revenue was as above, the Respondents represented by the learned counsel Shri V. Balasubramaniam made a preliminary objection stating that appeal was filed by learned Chief Commissioner, without being the same filed by the respective Commissioner, that is not maintainable. According to him, an appeal under Section 35(2) of the Act can only be filed by a Commissioner. In absence of a proper appeal being filed, that is not maintainable. In support of his argument he relied on the following decisions: (1) Commissioner of Customs, Chennai v. Biomed Hi-Tech Industries Ltd. - 2009 (235) E.L.T. 293 (Tri.- Chennai) (ii) Commissioner of Central Excise, Kolkata v. Naffar Chandra Jute Mills Ltd. - 200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of law, permitted to exercise the power of the Commissioner by statute itself. Such express grant of statutory power may be well appreciated from the angle of removing hardship in the event of contingency. By the above Rule, Legislature has not permitted a subordinate to exercise the powers of a superior authority and that they have consciously not permitted. Intent and purpose of Rule 3 of the Central Excise Rules, 2002 sought to be achieved can be appreciated when provision of that Rule is read into the provision of Section 35B(2) of the Act to make the grant of express power effective. A Chief Commissioner thus can no way be less than a Commissioner by virtue of his hierarchical position and wisdom. Therefore, had there been any int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act to achieve the object sought to be achieved by that section. For the above reasons, there is no legal force to hold Revenue's appeal is not maintainable. Even if the contention of the respondent is considered for a moment, the defect pointed out by the respondents is also a curable defect. When procedural defect in the course of appeal is challenged, that gives rise to a curable defect since remedy to appeal is substantial right which is undeniable unless otherwise expressly barred by law. For no bar to appeal, present appeal is maintainable. Therefore, we hold that the respondent's preliminary objection as to maintainability is unsustainable. 6. Learned Jt. CDR appearing on behalf of Revenue submits that when the matter was before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to defend the main charge of clandestine removal, evading duty. He has also brought to record that the assessee has knowingly acted in defiance of law stating to be unaware of consequence thereof. Consequently, duty liability of the assessee was bound to arise with other consequences of law followed. 9. We are surprised to note how the learned Commissioner (Appeals) without evaluating the evidence on record, both oral and documentary, could safely rely on the submission of the assessee when evidence on record self-speak the nature of the allegation and gravity thereof. When Respondent stated that parallel set of documents were prepared by them for producing before bank to get bank loan, learned appellate authority has failed to examine ..... X X X X Extracts X X X X X X X X Extracts X X X X
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