(Arising Out Of vs Commissioner Of Central Excise & ...
- CitationAppeal No.184-189/Pat/S.Tax/Appeal/2013 dated 23.05.2013
Ratio decidendi
The rule this decision rests on
An appellate authority under the Finance Act, 1994 is confined to the grounds and the scope of the appeal before it and cannot travel beyond the brief before it, so that it cannot set aside or alter an adjudication order on a matter the appellant has not challenged by filing an appeal under Section 85 of that Act. Where the assessee has not filed an appeal under Section 85 of the Finance Act, 1994 challenging the penalty imposed under Section 78 and the adjudicating order on that issue is therefore not under challenge, the assessee cannot be permitted to file an appeal against the order-in-appeal that allowed the Revenue's appeal against non-imposition of penalty under Section 76, the order-in-appeal having been decided in the assessee's favour.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
(Arising out of Appellant No.1-4) Order-in-Appeal No.184-189/Pat/S.Tax/Appeal/2013 dated 23.05.2013 Appellant No.5) Order-in-Appeal No.228-232/Pat/S.Tax/Appeal/2013 dated 20.06.2013 all passed by the Commissioner(Appeals) of Customs, Central Excise & Service Tax, Patna.)
FOR APPROVAL AND SIGNATURE
HONBLE DR. D.M. MISRA, MEMBER(JUDICIAL) HONBLE DR. I.P. LAL, MEMBER(TECHNICAL) 1. Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the CESTAT(Procedure) Rules, 1982 for publication in any Authorative report or not?
3. Whether Their Lordship wishes to see the fair copy of the Order?
4. Whether Order is to be circulated to the Departmental Authorities?
1) Shri Vijay Kumar Rai 2) Shri Chandra Bhushan Singh 3) Shri Rabindra Kumar Mishra 4) Shri Jeewish Kumar Singh 5) Shri Ganesh Mahto Applicant (s)/Appellant (s) Vs.
Commissioner of Central Excise & Service Tax, Patna Respondent (s)
Appearance:
Shri M.Rastogi, Adv. for the Appellant (s) Shri K.Chowdhury, Supdt.(AR) for the Respondent (s)
CORAM:
Honble Dr. D.M. Misra, Member(Judicial) Honble Dr. I.P. Lal, Member(Technical)
Date of Hearing:- 11.06.2015 Date of Pronouncement :- 11.06.2015
ORDER NO.FO/A/75293-75297/2015
Per Dr. D.M. Misra.
1. Heard both sides.
2. With the consent of both sides, the Appeal filed by Shri Ganesh Mahto, which is not listed to-day, is also taken up along with other Appeals involving similar issue.
3. At the outset, the ld.AR for the Revenue submits that the ld. Commissioner(Appeals) has rejected the Revenues appeals observing that penalty cannot be imposed both under section 78 and also under section 76 of the Finance Act, 1994. It is his submission that before the ld.Commissioner(Appeals) it was the Revenue who had filed appeals against respective orders-in-original as the adjudicating authority had failed to impose penalty under Sec.76 of the Finance Act,1994. The appellants-assessees herein, have not filed any appeal under Sec.85 of the Finance Act, 1994 before the ld.Commissioner(Appeals) challenging the correctness of the penalty imposed under Sec.78 nor on any of the issues. It is his submission that since the assessee have not filed necessary Appeal before the ld.Commissioner(Appeals), therefore, the Order passed by the adjudicating authority is binding him. Therefore, on rejection of the Revenues appeal by the ld. Commissioner(Appeals), the appellants-assessees cannot be eligible to file Appeal against the said order-in-appeal of the ld.Commissioner(Appeals) which has bee decided in their favour and against the Revenue.
4. The ld.Adv. on the other hand submits that while passing the order it is the onerous responsibility of the ld. Commissioner(Appeals) to examine all aspects of the case and pass an appropriate order in order to deliver justice and if necessary by travelling beyond the grounds raised by the Appellants. In support, he has referred to the decision of the Honble Madras High Court in the case of Ramco Cements Ltd. vs. Deputy Commissioner of Income-tax, Special Range-I, Madurai [2015] 373 ITR 146 146 (Madras).
5. Heard both sides and perused the record.
6. We find that the ld. Commissioner(Appeals) has rejected the Revenues appeal filled against the Order-in-Original for non-imposition of Penalty under Sec.76 of the Finance Act,1976; the assessee has not challenged the said Order by filing the Appeal as prescribed under Sec.85 of the Finance Act,1994.The ld. Commissioner(Appeals), as the first appellate authority, under The Finance Act,1994 disposed the appeal considering the grounds taken by the Revenue against the adjudication Order. The principles of law in this regard is well settled that being an appellate authority the ld.Commissioner(Appeals) cannot travel beyond the scope of the brief before him. The case law cited by the ld.Adv. is under different set of facts and not applicable to the present case. In these circumstances, we do not find merit in the submissions advanced by the Ld. Advocate for the assessees-appellants. Consequently, the Appeals are dismissed being devoid of substance and also not maintainable. Stay Petitions also disposed of.
(Pronounced and dictated in the open court.)
SD/ SD/
(I.P.LAL) (D.M.MISRA) MEMBER(TECHNICAL) MEMBER(JUDICIAL) sm
4
Appeal No.S.T. 71239,71075, 71076, 71078 & 71077/13
This page reproduces a public judgment and a summary of it. It is research material, not legal advice, and it is no substitute for advice from an advocate on your own facts.
Research this judgment with Miss Lucy
Ask what it holds, what has followed it, and what it means for your matter — in plain English, with the citations.
Try Miss Lucy free