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2016 (8) TMI 290 - CESTAT NEW DELHI

2016 (8) TMI 290 - CESTAT NEW DELHI - TMI - Whether the cross-objections filed by the assessee before Commissioner (Appeals) can be considered to be an appeal or not - Held that:- by following the decision of Hon'ble Karnataka High Court in the case of Southern Auto Products Vs. Commissioner of Central Excise, Bangalore-I [2007 (11) TMI 363 - KARNATAKA HIGH COURT], the cross-objections filed by the assessee before Commissioner (Appeals) are required to be disposed of as an appeal filed by the as .....

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icating Authority, who confirmed the demand of duty to the extent of ₹ 1,73,246/-. In addition, he confirmed interest and imposed penalty of ₹ 80,000/- on the assessee in terms of Rule 25 of the Central Excise Rules, 2001 read with Section 11AC of Central Excise Act, 1944. 2. The said order of the Assistant Commissioner was challenged by the Revenue before Commissioner (Appeals) with a prayer to enhance the penalty equal to the duty amount. At that stage, the appellant also filed cro .....

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at the assessee did not choose to file any appeal against the said order of the Assistant Commissioner, confirming the demand of duty and there is no provision carved out under Section 35E to enable the assessee to file cross-objections in the departmental appeal before the Commissioner (Appeals) against that portion of the order which does not stand appealed against by the assessee. As such he refused to consider the cross-objection as appeal and did not decide on the same. 4. Hence, the presen .....

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y. It was in exercise of these powers that the Revenue filed an appeal before the Commissioner (Appeals) against the order of the Original Adjudicating Authority. Sub-section 4 of Section 35E is to the following effect: Where in pursuance of an order under sub-section(1) or sub-section(2) the adjudicating authority or the authorized officer makes an application to the Appellate Tribunal or the 10[Commissioner (Appeals) within a period of three months from the date of communication of the order u .....

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n filed by the Revenue is required to be disposed off as if such application was an appeal against the decision or order of the Adjudicating Authority. Further, in terms of the said section, the provisions of the Act regarding appeals etc including the provisions of sub-section 4 of Section 35B shall apply to such application. When we examine the provisions of Section 35B (4), we find the same to the following effect:- On receipt of notice that an appeal has been preferred under this section, th .....

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um of cross-objections filed by the assessee against that part of the order which is against him is required to be disposed of by the Tribunal as if it was an appeal presented within time, even though initially, no separate appeal stand filed by the assessee. The provisions of section 35B (4) have been specifically made applicable to the appeals filed before the Commissioner of Central Excise (Appeals). As such a joint reading of both the provisions of law lead us to inevitable conclusion that t .....

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ich is against him, he cannot file cross-objections against that part, in case the Revenue challenges the said order before the Commissioner (Appeals). 8. We have carefully gone through the said decision of the Tribunal. We note that though the provisions of Section 35E (4) and the provisions of Section 35B (4) stands referred to in the said decision but there is no discussion on the point as to why the provisions of Section 35B (4), which have been specifically made applicable to Section 35E (4 .....

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