COMMISSIONER OF CUSTOMS, VISAKHAPATNAM Vs. ORISSA INDUSTRIES

JUDGEMENT

(1.) AT the outset, the respondent's Counsel raised an objection that the appeal itself is not maintainable. He said that Board has directed the Commissioner of Central Excise, Hyderabad to file the appeal, as per Order No. 193 -R/97, dt. 12 -9 -97. He said that in the instant case, the appeal was not filed even by the Commissioner, whereas the appeal is filed by the Assistant Commissioner.

(2.) SMT . Radha Arun submitted since the Commissioner has further delegated the power to the Assistant Commissioner, it resulted in filing the appeal by the Assistant Commissioner.

(3.) WE have carefully considered the matter. We find that in the instant case the Board specifically has given a direction to the Commissioner of Customs and Central Excise, Hyderabad to file an appeal before the Tribunal. Accordingly, Commissioner of Central Excise, Hyderabad was required to file an appeal. Instead of that Commissioner of Customs, Visakhapatnam directed the Assistant Commissioner to file an appeal before the Tribunal. At the first instance, to whom the power was given has not exercised that power in filing the appeal. In the instant case even that Commissioner has not delegated any power. It is also settled position now that a delegate cannot further delegate. In view of the infirmities in the impugned order, the appeal filed by the Assistant Commissioner is not sustainable in the eye of law as it was rightly pointed out by the Counsel for the respondents. Concurring with this view, the appeal filed by the Revenue is hereby dismissed as not maintainable.