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TMI Blog2015 (11) TMI 148X X X X Extracts X X X X X X X X Extracts X X X X ..... of law for consideration :- "1) Whether or not the Appellate Tribunal was in error in overruling the submissions of the appellant herein that the formation of opinion by the Commissioner before filing of appeal by Revenue is mandatory under Section 35B (2) of the Central Excise Act, as held by Hon'ble Gujarat High Court in the case of Commissioner of Central Excise & Customs, Surat- I, - Vs - Shree Ganesh Dyeing & Printing Works reported in 2008 (232) ELT 775 (Guj.)? 2) Whether or not the Appellate Tribunal was in error in overruling the objection of the appellant herein that the Revenue's appeal before it did not challenge the limitation issue decided in favour of the appellant hereby by the first appellate authority and conseq ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... VE under Section 11A (2) of the Act. I impose a penalty of Rs. 7,67,362/= (Rupees Seven Lakhs Sixty Seven Thousand Three Hundred and Sixty Two only) on M/s.SVE under Section 11 AC of the Act. I impose a penalty of Rs. 80,000/= (Rupees Eighty Thousand only) on M/s.SVE under rule 173Q of the Rules. I impose a penalty of Rs. 75,000/= (Rupees Seventy Five Thousand only) on Shri M.Ramprasad, Chief Executive of M/s.SVE under Rule 209A of the Rules. M/s.SVE are liable to pay interest under Section 11AB of the Act. I appropriate the sum of Rs. 6,50,000/= (Rupees Six Lakhs Fifty Thousand only) paid by M/s.SVE towards the above dues." 4. Aggrieved against the said order of the adjudicating authority, the assessee preferred appeal to the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ope and manner of examination in adjudication. Goods were also undervalued and cleared to M/s.TVS Electronics Ltd. Pleas raised by the respondent before the adjudicating authority was not acceptable to him for no merits therein for which he held that the assessee failed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 issues, which have emanated from cause of action." Aggrieved by the said order, the present appeal is filed by the assessee. 6. Learned counsel appearing for the appellant/assessee contended that the appeal filed by the Chief Commissioner is not maintainable in terms of Section 35 (b) (2). Learned counsel further contended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel appearing for the appellant/assessee and the learned standing counsel appearing for the respondent/Revenue and perused the materials available on record. 9. From a careful perusal of the order passed by the Tribunal, it is evident that the issue as regards the mandatory requirement for formation of opinion by the Commissioner before filing of appeal by Revenue under Section 35B (2) of the Central Excise Act has not been raised by the assessee. The submissions advanced by the learned counsel for the assessee clearly shows that apart from the plea that the appeal filed by the Chief Commissioner is not maintainable, no plea with regard to formation of opinion by the Commissioner before filing the appeal has been raised. In the absenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... highest officer in the Central Excise Department is empowered to discharge the duties conferred or imposed by or under the Act or the rules on any other Central Excise Officer, who is subordinate to him. Therefore, in view of the power under Rule 3 (3) of the Central Excise Rules, the Chief Commissioner is entitled to file the appeal and, therefore, this objection raised by the assessee/appellant cannot be sustained. Nevertheless, with regard to the question of power to file appeal is concerned, it is seen from the record that no such plea was raised before the Tribunal and, therefore, we are not inclined to accept the plea at this stage and, therefore, the 1st substantial question of law is rejected. 11. Insofar as the plea that no issue ..... X X X X Extracts X X X X X X X X Extracts X X X X
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