TMI Blog2011 (3) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... - - Dated:- 15-3-2011 - HON BLE MR JUSTICE HRISHIKESH ROY For the Petitioners : Mr. K.N. Choudhury, Sr. Advocate, Mr. S.K. Kejriwal Ms, S. Kejriwal. Advocates. For the Respondents : Ms. R. Bora, CGC. JUDGMENT AND ORDER (ORAL) Heard Mr. S.K. Kejriwal, learned Counsel appearing for the petitioner. Also heard Ms. R. Bora, learned Central Government Counsel appearing for the respondents. 2. The petitioner company owns 3 Tea Estates i.e. Lukwah and Khona (in Sivsagar district of Assam) and Dalgaon Tea Estate in Jalpaiguri, West Bengal. The Lukwah Tea Estate of the petitioner is duly registered with the Central Excise Department for manufacturing tea including tea waste, bearing Registration No. 3/SIB/Package Tea/1998 da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 98 and that they are eligible for the exemption benefits under Notification No. 8/98-C.E. dated 2.6.1998. 4.2 Mr. S.K. Kejriwal contends that the said order of the Joint Commissioner (Tech.), has attained finality and no interference could have been made with the consequential declaration made by the Assistant Commissioner who declared that the proceeding initiated against the petitioner through Show-Cause-Notice No. 911 dated 8.10.1998 and the Show-Cause-Notice dated 1049 dated 9.11.1998 are not sustainable. The Counsel also submits that through a purported Review made by the Commissioner, the Commissioner (Appeals) couldn t have indirectly disturbed the final order of the Joint Commissioner (Tech.) through the impugned order on 28.6.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Joint Commissioner (Tech.)] held that M/s Lukwah Tea Estate is eligible for the exemption benefit under the Notification No. 8/98. But surprisingly Review was done without disturbing the original order of the Joint Commissioner (Tech) and only the consequential order of the Assistant Commissioner was set aside and the case was remanded for re-determination of the claim. On remand the impugned order was passed by the Assistant Commissioner on 20.10.2004 declaring that the petitioner is not entitled to exemption of Central Excise duty under Notification No. 8/98 and direction was issued for recovery of duty at the prevailing rate. 7. From the materials in the case record, it is apparent that the order of the Joint Commissioner (Tech) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n afforded to the effected party during the Review process. 9. Under the Central Excise Rules, 1944 (hereinafter referred to as the Rules ), in Rule 2(ii)(c), the Collector means the Collector of Excise, Shillong . The Collector (Appeals) in Rule 2(B) (ii-a) of the Rules means in relation to an order of decision of an officer of the Central Excise subordinate to, inter alia, the Collector of Central Excise Shillong . Considering these definitions, the Collector (Appeals) could not have considered an Appeal or Revision against the order of the Commissioner, Central Excise who is not subordinate to the Commissioner (Appeals). Accordingly the order passed on 28.6.2002 by the Commissioner (Appeals), in pursuant to the exercise of Revi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 12. It mayn t be out of place to record that the ex-parte Review order of the Commissioner was never furnished to the aggrieved party (petitioner) and couldn t be produced by the respondents even for this Court s perusal. Therefore there might be some force in the petitioner s contention that this Review order was never formally passed by the Commissioner. 13. For the foregoing discussions and having regard to the fact that the order of the Joint Commissioner (Tech.) has attained finality and the Review order was ex-parte passed by the Commissioner without any legal competence and further considering the fact that the impugned orders have been passed without hearing the petitioner, this petition deserves to be allowed. Consequently t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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