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TMI Blog2019 (2) TMI 942X X X X Extracts X X X X X X X X Extracts X X X X ..... 2016 on record. A leave has also been sought to place the same on record, while seeking requisite amendment in the memo of appeal. The application is allowed. The document dated 25.05.2016 so also the amended memo of appeal are taken on record. D.B. Central excise Appeal No. 26/2018 The present appeal under Section 35-G of the Central Excise Act has been filed, calling in question the order dated 31.10.2017 passed by the Customs, Excise and Service Tax Appellate Tribunal, Principal Bench, New Delhi (hereinafter referred to as the 'CESTAT' or the 'Tribunal'), whereby the appeal filed by the appellant has been dismissed as not maintainable. The precise facts are that the Commissioner of Central Excise, Jodhpur passed an order dated 25.05 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent appeal as no substantial injustice has been caused to the appellant, more particularly as the amount of penalty (Rs.10,000/-) is negligible. Considering the rival submissions and going through the relevant statutory provisions, we are of the opinion that the following substantial question of law arises for our consideration: (i) Whether in the facts and circumstances of the case, learned members of the Tribunal were legally justified in rejecting the appellant's appeal, while applying clause (ii) of the second proviso to Section 35-B of the Central Excise Act, 1944? Though the controversy at hands lies in a narrow compass but it has wide span/applicability and even wider repercussions and the same is likely to affect many appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r section 35, as it stood immediately before the appointed day; (d) an order passed by the Board or the Principal Commissioner of Central Excise or Commissioner of Central Excise, either before or after the appointed day, under section 35-A, as it stood immediately before that day: Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such order relates to,- (a) a case of loss of goods, where the loss occurs in transit from a factory to a warehouse or to another factory, or from one warehouse to another, or during the course of processing of the goods in a warehouse or in storage, whether in a factory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal was against the order of the Commissioner of the Central Excise, as an Adjudicating Authority. That is why learned counsel appearing for the revenue conceded this factual position. That being the fact-scenario, para (ii) of second proviso to Section 35-B does not apply, which is essentially meant to cover the cases referred in clause (b), clause (c) or clause (d) of subsection (1) of Section 35-B of the Act. As far as the appeal before the Tribunal is concerned, the same was indisputably within the ambit of clause (a) of subsection (1) of Section 35-B of the Act, which reads thus:- A decision order passed by the Member of Central Excise or Commissioner of Central Excise as Adjudicating Authority. The term Adjudicating Auth ..... X X X X Extracts X X X X X X X X Extracts X X X X
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