TMI Blog2007 (8) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... ating order was not amenable to review. 2. The respondent-assessee was engaged in the manufacture of hand tools. On scrutiny of the ARE-1 s submitted by the respondent during the period from 15-1-2003 to 22-1-2003, it was observed that they had cleared the export through merchant exporter excisable goods involving Central Excise duty of Rs. 75,206/- without following the export procedure. Neither the respondent nor the exporter had executed the bond with the competent authority or debited the duty involved. Therefore, a show cause notice was issued on 6-1-2004, on the respondent requiring them to explain why the penalty should not be imposed under Rule 25 of the Central Excise Rules, 2002. 3. According to the respondent, it was an SSI U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l before the Commissioner (Appeals) on the grounds mentioned in the said order dated 14-2-2005. That is how the appeal was filed before the Commissioner (Appeals) for enhancing the penalty. The Commissioner (Appeals) however, by the impugned order dated 21-7-2005, held that since, in the appeal filed by the respondent, the order of the adjudicating authority was upheld on 28-1-2005, before the order-in-review was passed under Section 35E(2) on 14-2-2005, the order dated 31-8-2004 of the adjudicating authority having merged in the order dated 28-1-2005, the appeal of the Revenue was not maintainable. The Commissioner (Appeals) relied upon the decision of the larger bench in CCE, New Delhi v. LML Ltd. reported in 2002 (143) E.L.T. 431 (Tri. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be left remediless by misapplying the doctrine of merger, on the issue of enhancement of penalty which was not involved in the appeal of the assessee. He submitted that, since the review order was passed within the prescribed period of limitation, the appeal filed cannot be held to be not maintainable because the assessee s appeal against imposition of penalty was dismissed earlier. He placed reliance on the decision of the Hon ble the Supreme Court in the case of Mauria Udyog Ltd. v. CCE, Delhi-II reported in 2002 (146) E.L.T. 37 (S.C.), and of the Division Bench of this Tribunal in CCE, Belapur v. Mahalakshmi Dyg. Ptg., (I) Pvt. Ltd., reported in 2006 (203) E.L.T. 412 (Tri. Mumbai), in support of his contentions. 7. Chapter VI-A of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aches the Appellate forum within sixty days and such cases are decided within six months, no appeal of the Revenue would become maintainable. 9. There was also a revisional power in the Board and the Commissioner (Appeals) Central Excise under Section 35E. This revisional power could not be exercised on questions having relation to the rate of duty or to the value of goods, which were excluded by virtue of sub-section (5) of Section 35E from the power of Board or the Commissioner of Central Excise, to pass the orders of the nature falling under Section 35E. Power under Section 35E is only for issuing directions to file an appeal against the order of the adjudicating authority. The revisional power under Section 35EA was much wider and sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the order which is sought to be revised, as per the provision of sub-section (4) thereof. Any decision under sub-section (1) and (2) of Section 35EA would be appealable to the Tribunal under sub-section (5) of Section 35EA. 11. In the present case, since the question related only to penalty, there was no scope for exercising power of revision under Section 35EA(2) of the Act. The Revenue had, therefore, necessarily to resort to the provision of Section 35E (2) for filing of an appeal, and that was done within the time stipulated, and the appeal could not have been dismissed by the Commissioner (Appeals) merely on the ground that the order of so-called review under Section 35E(2) was made after the assessee s appeal against penalty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Bench of this Tribunal applying the ratio of Mauria Udyog Ltd. and considering the decision of the Division Bench in LML Limited held that, the principle of merger would not be applicable when the subject matter of appeal by the Revenue and the other party were different. The Hon ble the Supreme Court in Kunhayammed v. State of Kerala reported in 2001 (129) E.L.T. 11 (S.C.) held in paragraph 44 of the judgment that the doctrine of merger is not a doctrine of universal or unlimited application and it will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability of merger. 12. The impugned order of the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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