CEGAT, Chennai BENCH

RPG Cellular Services Ltd.

v.

Commissioner of Central Excise

appeals

Section 85 of the Finance Act, 1994 - Commissioner (Appeals) - Appeals to - Whether an appeal would lie against order of Commissioner passed under section 73 before Commissioner (Appeals) under section 85 and he has jurisdiction to decide same on merits - Held, yes [Para 6]

>> FACTS

Against the order of the Commissioner passed under section 73, the assessee filed an appeal before the Commissioner (Appeals). However, the Commissioner (Appeals) 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 him under section 85.

On appeal to the Tribunal :

>> HELD

Since the impugned order was passed under section 73, it clearly followed that the appeal did not lie to the Tribunal under section 86(1) but to the Commissioner (Appeals) under section 85(1). [Para 6]

No doubt, it is a cardinal principle of the appellate machinery that the appellate authority should be higher in rank than the authority passing the order under the Finance Act. However, it is for the legislative authority to review the legal statutory provisions 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. [Para 7]

Hence, the impugned order in appeal was set aside and the matter was remanded to the Commissioner (Appeals) for de novo consideration of the appeal before him on merits as he has jurisdiction to do so. [Para 8]