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2018 (1) TMI 1268

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..... d on the ground on which it has been dismissed, namely, without adjudication on merits - Once the appeal was admitted in this case and kept pending, then, no useful purpose is served by dismissing it at the final hearing on the ground of maintainability. Ultimately, it is a discretion vesting in the tribunal, which it must exercise judiciously and not capriciously. The order under appeal, which would include the order on rectification of mistake application set aside - appeal is restored to the tribunal's file for adjudication on merits in accordance with law. - Central Excise Appeal No. 232 of 2016 - - - Dated:- 22-1-2018 - S. C. Dharmadhikari And Smt. Bharati H. Dangre, JJ. Mr. H. G. Dharmadhikari for the appellant Mr. Jit .....

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..... se, by that order of the Commissioner, the duty, fine or penalty demanded does not exceed ₹ 50,000/- (before 6th August, 2014). The order of the Commissioner is dated 23rd January, 2012. 4. The statutory provision, which has been referred is section 35B of the Central Excise Act, 1944. That section reads thus:- 35-B. Appeals to the Appellate Tribunal .- (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order - (a) a decision or order passed by the Principal Commissioner of Central Excise or Commissioner of Central Excise as an adjudicating authority; (b) an order passed by the commissioner (Appeals) under section 35-A; (c) an order passed by the Central .....

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..... ner (Appeals) on or after the date appointed under section 109 of the Finance (No. 2) Act, 1998: Provided further that the appellate Tribunal may, in its discretion, refuse to admit an appeal in respect of an order referred to in clause (b) or clause (c) or clause (d) where - (i) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or (ii) the amount of fine or penalty determined by such order; does not exceed fifty thousand rupees. (1-A) Every appeal against any order of the nature refer .....

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..... Committee of Commissioners of Central Excise differs in its opinion regarding the appeal against the order of the Commissioner (Appeals), it shall state the point or points on which it differs and make a reference to the jurisdictional Chief Commissioner of Central Excise who shall, after considering the facts of the order, if is of the opinion that the order passed by the Commissioner (Appeals) is not legal or proper, direct any Central Excise Officer to appeal to the Appellate Tribunal against such order. Explanation for the purposes of this sub-section, Jurisdictional Chief Commissioner means the Chief Commissioner of Central Excise having jurisdiction over the adjudicating authority in the matter. (3) Every appeal under .....

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..... s is five lakh rupees or less, one thousand rupees; (b) where the amount of duty and interest demanded and penalty levied by any Central Excise Officer in the case to which the appeal relates is more than five lakh rupees but not exceeding fifty lakh rupees, five thousand rupees; (c) where the amount of duty and interest demanded and penalty levied by an Central Excise Officer in the case to which the appeal relates is more than fifty lakh rupees, ten thousand rupees: Provided that no such fee shall be payable in the case of an appeal referred to in sub-section (2) or a memorandum of cross-objections referred to in subsection (4). (7) Every application made before the Appellate Tribunal,- (a) in an appeal for grant o .....

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..... l could not have been dismissed on the ground on which it has been dismissed, namely, without adjudication on merits. 7. It is surprising that at the final hearing of the appeal, which was filed in the year 2012, the tribunal perused the records only for the purpose of exercising this discretion and passed an order initially running into four pages. Then, on an application for rectification of this mistake, namely, dismissal of the appeal which was already admitted, by invoking a proviso, the tribunal devoted its attention to this issue and passed an order running into five pages. The time which the tribunal devoted for all this could have very well and fruitfully been devoted to the adjudication on merits of the appeal. It is improper t .....

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