CHIRAG INDUSTRIES Vs. COMMISSIONER OF CENTRAL EXCISE, VAPI

JUDGEMENT

(1.) M/s. Chirag Industries, Daman filed this appeal against the order -in -appeal passed by Commissioner (Appeal), Vapi. The issue involved is that the appellant purchased/took over the factory premises of M/s. Akshay Daman Solvents Pvt. Limited and applied for Central Excise Registration. It was communicated to the appellants that one case is pending in the name of M/s. Akshay Daman Solvents Pvt. Limited and demand of Central Excise duty of Rs. 4,36,887/ - with interest and penalty of equal amount and personal penalty of Rs. One lakh is pending against them. The appellant vide their letter dated 15 -6 -2010 replied that they were furnishing indemnity bond to safe guard the Revenue and paid only Central Excise duty of Rs. 4,36,887/ - through cash with a condition to pay the balance amounts within three months. Subsequently, the appellants contended that there was an error in demanding duty, penalty and personal penalty from them as penalty under Rule 173Q(1) should not be imposed in the absence of apportionment of the penalty. They also relied upon the following decisions : -

(2.) THE Assistant Commissioner, Central Excise however did not agree with the contention and matter went to Commissioner (Appeal) for decision. Commissioner (Appeal) held that appeal against these two letters from the Revenue, dated 15 -6 -2010 and 17 -6 -2010, is not admissible under Section 35 of the Central Excise Act, as these letters are neither decision nor an order issued under the provisions of Central Excise Act but are simple letter for indicating recovery of dues against the OIA. He found that even on merits, the appeal is to be rejected because he was not a proper authority to enter into merits of order -in -appeal and the appeal should have been filed with Honble Tribunal. He also found that appellant has given indemnity bond at the time of taking registration binding themselves for payment of dues confirmed to the Government and now they cannot turn round after issue of registration. He rejected the appeal.

(3.) I have carefully gone through the details of the case, various submissions and case laws cited by the learned advocate. Section 35B dealing with the appeals to the Tribunal reads as follows : - 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 -