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2016 (6) TMI 514 - CESTAT NEW DELHI

2016 (6) TMI 514 - CESTAT NEW DELHI - TMI - Maintainability - Demand of duty - Directions were given by Commissioner to Dy. Commissioner to challenge the same by way of filing of an appeal before the commissioner (Appeals) - Whether the Commissioner is required to direct “Such Authority” to apply to Commissioner (Appeals) for determination of such points arising out of the decision - Section 35 E (2)of Central Excise Act, 1944 - Held that:- it is found that there are conflicting judgments of the .....

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olated, thus making the appeal filed by any other authority as not maintainable.

As there are two decisions of the Tribunal, interpreted and the applicability of the Supreme Court’s decision in the case of CCE Vs. M.M. Rubber Co. [1991 (9) TMI 71 - SUPREME COURT OF INDIA] is different. Therefore matter needs to be resolved by the larger Bench. For the said purpose, we place papers before the Hon’ble President for constitution of a Larger Bench to resolve the following question of law .....

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e for the respondent ORDER After hearing both the sides for sometime, we find that proceedings were initiated against the respondent as regards as regards the classification of the products - Light Boxes/glow signs being manufactured by them. The proceedings initiated against them resulted in passing of an order by the Addl. Commissioner, wherein he confirmed the duty to the extent of ₹ 52,241/- and also imposed penalty of ₹ 10,000/- However, he dropped the duty demand to the extent .....

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that the same was not maintainable inasmuch as the same was required to be filed by the Addl. Commissioner only, who adjudicated the case. By referring to the provisions of Section 35 E (2), he observed that the said section required the Commissioner to direct Such Authority to apply to Commissioner (Appeals) for determination of such points arising out of the decision. As such, he observed that the expression Such Authority appearing in the said Section 35 E (2) refers to the adjudicating autho .....

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etime duly represented by Shri G. R. Singh, ID DR for the Revenue and Shri Ravinder Singh, ID, Advocate for the respondent, we find that there are conflicting judgements of the Tribunal on the said issue. Whereas in some of the decisions of the Tribunal, it has been held that Section 35 E (2) cannot be interpreted to mean that such directions are required to be given only to the adjudicating Authority or any other officer higher in rank than the Adjudicating Authority. On the other hand, there a .....

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to another decision of the Tribunal in the case of Commissioner of Central Excise Vs. Nagachandra Cements (P) Ltd. - 2007 (218) ELT 402 (Tribunal-Bang)He has also drawn out attention to another decision of the Tribunal in the case of Commissioner of Central excise Vs. Blue Star Spinning Mills Ltd. - 2005 (182) ELT 125 (Tribunal), in support of his plea that it is not necessary to direct only the adjudicating authority to file an appeal. 6. On the other hand, id. Advocate appearing for the respo .....

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2) ELT 125 (Tribunal-Delhi) where the Hon ble Supreme Court s decision in the case of Collector of Central Excise Vs. M.M. Rubber Co. - 1991 (55) ELT 289 (SC) was referred to and was distinguished, as observed in para 7.4 of the said order reproduced below : - 7.4 In para 5 and 6 of the judgement, the Supreme Court has set out the provisions relating to Appeals and while setting out these provisions has mentioned that the direction to file on appeal under sub-section (1) and (2) of Section 35 E, .....

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under the Act correctly and properly and where a time is limited for the purpose by the statute, such power should be exercised within the specified period from the date of the order sought to be reconsidered. 8. On the other hand, Tribunal in the case of Metro Steel Rolling Mills - 2005 (66) RLT 324 (CESTAT-Mum.) referred to the same decision of the Hon ble Supreme Court in the case of M.M. Rubber Co. - 1991 (55) ELT 289 (SC) and held in favour of the assesse by observing as under : - We derive .....

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