Central Excise Commissioner Can Direct The Deputy Commissioner To Appeal Before The Commissioner (Appeals): CESTAT
Mariya Paliwala
11 July 2023 2:00 PM IST
The Kolkata Bench of the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) has held that the Central Excise Commissioner can direct the Deputy Commissioner to appeal before the Commissioner (Appeals).The bench of Ashok Jindal (Judicial Member) and K. Anpazhakan (Technical Member) has observed that the Deputy Commissioner has rightly filed the appeal before the Commissioner (Appeals)...
The Kolkata Bench of the Customs, Excise, and Service Tax Appellate Tribunal (CESTAT) has held that the Central Excise Commissioner can direct the Deputy Commissioner to appeal before the Commissioner (Appeals).
The bench of Ashok Jindal (Judicial Member) and K. Anpazhakan (Technical Member) has observed that the Deputy Commissioner has rightly filed the appeal before the Commissioner (Appeals) in terms of Section 35E(2) of the Central Excise Act, 1944.
The appellant/assessee is a manufacturer of PSC Sleepers and dispatched the sleepers to M/s. Rail Vikas Nigam Ltd. on payment of excise duty for railway projects that were funded by the Asian Development Bank.
The appellant submitted that initially, the Deputy Commissioner of Central Excise and Service Tax sanctioned their refund claim, but an appeal was filed against the order. The Commissioner (Appeals) set aside the order sanctioning the refund claim for non-fulfilment of the condition of Notification No. 108/95-CE dated August 28, 1995.
The appellant contended that the Deputy Commissioner, who was the adjudicating authority, had filed the appeal before the Commissioner (Appeals). The adjudicating authority cannot file an appeal against its own order as the adjudicating authority is not an aggrieved person; therefore, the order is not sustainable.
The issue raised was whether the appeal under Section 35E of the Central Excise Act, 1944, before the Commissioner (Appeals) filed by the adjudicating authority on behalf of the aggrieved person is maintainable or not.
Section 35E of the Central Excise Act, of 1944, deals with the provisions of the filing of appeals by the revenue before the higher authorities.
The tribunal held that the Commissioner of Central Excise (Appeals) may direct authority to apply to the Commissioner (Appeals) for the determination of a point arising out of a decision or order, which means that the Commissioner can direct the adjudicating authority to file an appeal before the Commissioner (Appeals).
Case Title: M/s. Gannon Dunkerly & Co.Ltd. Versus Commissioner of CGST & CX, Bhubaneswar-I Commissionerate
Case No.: Excise Appeal No.171 of 2010
Date: 07/07/2023
Counsel For Appellant: Sagar Chowdhury
Counsel For Respondent: S.Mukhopadhyay
