1. Appeal No. ST/3/99 is against the order in appeal No. 170/99 (M-II), dated 26-11-1999 passed by the Commissioner (Appeals) wherein he has held that since the order in original itself was passed by the Commissioner of Central Excise concerned, no appeal would lie against the said order before the Commissioner (Appeals). It was, therefore, held that the appeal before him was not maintainable in law.
2. Appeal No. ST/4/99 is another appeal by the same appellants but against under in original No. 1/99, dated 26-5-1999 passed by the Commissioner of Central Excise, Chennai-II.3. Heard Smt Pushya Sitaraman, learned Counsel for the appellants who submits that appeal No. ST/3/99 against the order in appeal noted above is on the ground that the learned Commissioner (Appeals) does have jurisdiction to consider the appeal against the order in original passed by the Commissioner demanding duty under Section 73 (1) of the Finance Act. In this connection she cites then the provisions of Section 73 read with Section 85 of the said Act. Section 85(1) of the said Act provides as follows: '"Any person aggrieved by any assessment order passed by the Central Excise Officer under Section 71, Section 72 or Section 73, or denying his liability to be assessed under this Chapter, or by an order levying interest or penalty under this Chapter, may appeal to the Commissioner of Central Excise, (Appeals)" 3. She submits that since order in original was passed under Section 73 which fact is not disputed, therefore, the appeal to Commissioner (Appeals) is available under Section 85(1) extracted above. There is no room for any other criteria like rank or competency of the two Commissioners. In this connection she cites the decision of the Tribunal in the case of Bharati Cellular Ltd. v. CCE as reported in 1999 (107) E.L.T. 18 (Tribunal) wherein the Tribunal had held that order passed by the Commissioner of Central Excise under Section 73 of the Finance Act, 1994 was not appealable to the Tribunal in terms of the clear language of Section 86(1) ibid.
4. She submits that therefore, the decision in the order in appeal impugned that appeal would lie before the Tribunal and not before the Commissioner (Appeals) is wrong.
5. Shri M. Kunhikannan, learned DR on the other hand submits that it is the cardinal principle in all the appellate provisions under the law that the appellate authority should of the rank and position senior to the original authority on whose decision he sits in judgement. In this case, since the order in original has been passed by the Commissioner of Central Excise as the original authority, therefore, the Commissioner (Appeals) who is the same rank and status cannot sit in judgement over the said order of the Commissioner of Central Excise as this would violate the above mentioned cardinal principle.
6. We have carefully considered the rival submissions and records of the case wherein it is not disputed that the impugned order in appeal (Appeal NO. ST/3/99) was passed by the Commissioner (Appeals) under section 73 of the Finance Act, 1994. In this connection we also find that section 85(1) of the said Act, lays down that statutorily any assessment order passed by the Central Excise Officer under section 73 would be appealable to the Commissioner (Appeals). We also find that section 86(1) ibid lays down that appeals to Tribunal in this matter would be only when the order by the Commissioner of Central Excise is passed under Section 84 or by Commissioner (Appeals) under Section 85.
Since it is not disputed that the impugned order in appeal was passed under Section 73, therefore, it clearly follows that the appeal does not lie to the Tribunal under Section 86(1) but to the Commissioner (Appeals) under Section 85 (1) ibid. In this conclusion we are supported by the decision of the Tribunal in the case of Bharati Cellular Ltd. (supra).
7. The learned DR has submitted that it is the cardinal principle of the appellate machinery that the appellate authority should be higher in rank than the authority passing the order under the Customs Act, 1962 or the Central Excise Act, 1944. This is also the legal position under the Finance Act. In view of our findings noted above, this cardinal principle has not apparently been taken into consideration.
The Tribunal has to simply follow the statutory provisions. However, it is for the legislative authority to review the legal statutory provisions indicated above and decide as to whether it calls for any change. In this connection, Section 85(1) mentions any order passed by the "Central Excise Officer". It is for the Central Board of Excise & Customs to specify the Central Excise Officer up to which rank would qualify under the said expression used in the Statute.
8. In view of the aforesaid analysis and findings and in view of our applying the ratio of the decision cited supra we set aside the impugned order in appeal and remand the matter to the Commissioner (Appeals) for de novo consideration of the appepal before him on merits in view of our findings that he has jurisdiction to do so.
9. Before considering the appeal before him on merits, the Commissioner (Appeals) is also required to consider their stay application connected with this appeal in view of the aforesaid decision in the present appellants' appeal No. ST/4/99/ against order in original passed by the Commissioner of Central Excise, noted above. ST/COD/602/99 and the connected stay application are found to be infructuous and are therefore dismissed.