M/S. M.K. Trading Co vs Commissioner Of Central Excise, ...

[Arising out of Order-in- Appeal No. YDB/7/M-I/2012 dtd. 23/1/2012 passed by the Commissioner(Appeals), Central Excise, Mumbai]

For approval and signature:

Honble Mr Ramesh Nair, Member(Judicial)

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1. Whether Press Reporters may be allowed to see : No 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 authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : seen of the Order?

4. Whether Order is to be circulated to the Departmental: Yes authorities? =======================================================

M/s. M.K. Trading Co. : Appellants

VS

Commissioner of Central Excise, Mumbai-I : Respondent

Appearance

Shri. H.G. Dharmadhikari, Advocate for the Appellants Shri. Ashutosh Nath, Asstt. Commissioner(A.R.) for the Respondent

CORAM:

Honble Mr. Ramesh Nair, Member (Judicial)

Date of hearing: 8/5/2015 Date of decision: 8/5/2015

ORDER NO.

Per : Ramesh Nair

After hearing both sides on 8/5/2015, the matter was reserved for the order. However, on going through the records, I find that the duty amount involved in the case is Rs. 25,544 /- and interest thereon.

2. This Tribunal has discretion either to refuse or to admit the appeal under Second proviso to Section 35B of Central Excise Act, 1944 which is reproduced below:-

SECTION 35B. Appeals to the Appellate Tribunal.  (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order 

(a) a decision or order passed by the Commissioner of Central Excise as an adjudicating authority;

(b) an order passed by the Commissioner (Appeals) under section 35A; (c) an order passed by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) (hereafter in this Chapter referred to as the Board) or the Appellate Commissioner of Central Excise under section 35, as it stood immediately before the appointed day; (d) an order passed by the Board or the Commissioner of Central Excise , either before or after the appointed day, under section 35A, as it stood immediately before that day :

Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such order relates to, 

(a) a case of loss of goods, where the loss occurs in transit from a factory to a warehouse or to another factory, or from one warehouse to another, or during the course of processing of the goods in a warehouse or in storage, whether in a factory or in a warehouse;

(b) a rebate of duty of excise on goods exported to any country or territory outside India or on excisable materials used in the manufacture of goods which are exported to any country or territory outside India;

(c) goods exported outside India (except to Nepal or Bhutan) without payment of duty ;

(d) credit of any duty allowed to be utilised towards payment of excise duty on final products under the provisions of this Act or the rules madethereunder and such order is passed by the Commissioner (Appeals) on or after the date appointed under section 109 of the Finance (No. 2) Act, 1998:

Provided further that the Appellate Tribunal may, in its discretion, refuse to admit an appeal in respect of an order referred to in clause (b) or clause (c) or clause (d) where 

(i) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; o

(ii) the amount of fine or penalty determined by such order, does not exceed fifty thousand rupees ;

In the present case, the impugned order was passed by the Commissioner(Appeals) under Section 35A which is specified under Clause (b) of sub-section (1) of Section 35B. In view of Second proviso to Section 35B (1), this Tribunal has discretion to refuse of to admit the appeal in respect of order referred to clause (b) or Clause (c) or clause (d) where amount of duty, amount of fine or penalty determined by such order does not exceed Rs. 50,000/-(before 6/8/2014) and Rs 2 Lakhs (on or after 6/8/2014).

4. In view of the above discretion provided to this Tribunal, I refuse to admit this appeal. Therefore appeal is dismissed only on the ground that amount is below threshold limit of Rs. 50,000/- without going into merit of the case.

(Order pronounced in court on ____________)

Ramesh Nair Member (Judicial)

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