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Commissioner of Central Excise, Aurangabad Vs. Nectar Steel Cast Pvt Ltd. - Court Judgment

SooperKanoon Citation

Court

Customs Excise and Service Tax Appellate Tribunal CESTAT Mumbai

Decided On

Case Number

 Appeal No.E/2005/2004 & E/CO/462/2004 (Arising out of Order-in-Appeal No. BPS (69)24/2004 d

Judge

Appellant

Commissioner of Central Excise, Aurangabad

Respondent

Nectar Steel Cast Pvt Ltd.

Advocates:

For the Appellant : Mrs. D.M. Durando, Deputy Commissioner (A.R)). For the Respondent : None.

Excerpt:


.....the provisions of section 35e (2) during the relevant period, the commissioner of central excise may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct such authority to apply to the commissioner (appeals) for the determination of such points arising out of the decision. 4. we find that the hon’ble bombay high court in the case of cce vs silver streak welding products india pvt ltd reported in 2008 (226) elt 704 (bom) while interpreting the provisions of section 35e (2) of the central excise act at the relevant time held that the appeal is to be filed by the same authority who passed the adjudication order. in view of the above, without going into the other issues, we find no infirmity in the impugned order passed by the commissioner (appeals). 5. appeal is dismissed. the cross objection is also disposed of in the same terms.

Judgment:


S.S. Kang

1. Heard the learned Deputy Commissioner (A.R.), as none appeared on behalf of the respondents.

2. Revenue filed this appeal against the impugned order passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) held that as per the provisions of Section 35E (2) of the Central Excise Act, the appeal against the adjudication order is to be filed by the same authority who passed the impugned adjudication order and in the present case the adjudication order is passed by the Joint Commissioner whereas the appeal is filed by the Assistant Commissioner of Central Excise.

3. We find that as per the provisions of Section 35E (2) during the relevant period, the Commissioner of Central Excise may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct such authority to apply to the Commissioner (Appeals) for the determination of such points arising out of the decision.

4. We find that the Hon’ble Bombay High Court in the case of CCE vs Silver Streak Welding Products India Pvt Ltd reported in 2008 (226) ELT 704 (Bom) while interpreting the provisions of Section 35E (2) of the Central Excise Act at the relevant time held that the appeal is to be filed by the same authority who passed the adjudication order. In view of the above, without going into the other issues, we find no infirmity in the impugned order passed by the Commissioner (Appeals).

5. Appeal is dismissed. The Cross Objection is also disposed of in the same terms.




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