CCE Vs. ANKIT TEXTILES

JUDGEMENT

(1.) THESE appeals have been filed by the Revenue against OIO No. 15 -16/Commr/2006, dt. 10.02.2006/15.02.2006 passed by Commissioner of Central Excise Ahmedabad -II by dropping the show cause notice. Grounds taken by the Revenue mainly are that adjudicating authority has only commented on the aspect of what ought to have been done by the investigation rather than appreciating the evidences available on record.

(2.) LD . A.R. Shri Alok Srivastava appearing on behalf of the Revenue reiterated and argued the stand taken by the department in the grounds of appeal. It was his case that Respondents have confessed to the clandestine activity and that retractions made in the form of an affidavit were never received by the Revenue. Ld. A.R. thus argued that appeals of the Revenue be allowed by setting aside the OIO dt. 10.02.2006 passed by the adjudicating authority.

(3.) HEARD both sides and perused the case records. Advocate appearing on behalf of the Respondents has argued that appeals filed by the Revenue are not maintainable on the grounds of improper authorization by the Committee of Chief Commissioners. It is observed that as per Section - 35E(1) of the Central Excise Act 1944 that a notified committee of Chief Commissioners has to form an opinion before filing of an appeal against the order passed by a commissioner as adjudicating authority. It is further observed that as per Notification No. 24/2005 -CE(NT), dt. 13.05.2005 for Ahmedabad Central Excise Commissionerates, Ministry has constituted a committee of two Chief Commissioners. As per this notification, the competent committee consists of Chief Commissioner of Central Excise Ahmedabad and Chief Commissioner of Customs Ahmedabad to review the orders passed by CCE Ahmedabad -I, II, III, Bhavnagar & Rajkot Commissionerates. It is also observed that the present Review Order No. R -02/2008, dt. 08.01.2007 has been signed by Chief Commissioner of Central Excise Ahmedabad and Chief Commissioner of Central Excise Vadodara. As per the constitution of committees under Notification No. 24/2005 -CE(NT) Chief Commissioner of Central Excise Vadodara had no jurisdiction to sign such review order dt. 08.01.2007 as he is not a part of the notified Review Committee for Ahmedabad -II Commissionerate. When this preliminary objection was raised on 19.11.2012 by the Advocate of the Respondents during hearing, ld. A.R. sought time to satisfy the preliminary objection but no evidence is produced by the Department that on the date of signing the Review authorization Chief Commissioner of Central Excise Vadodara was also holding additional charge of Chief Commissioner Central Excise Ahmedabad. Further, both the Chief Commissioners have signed the authorization on different dates, which means that committee as such has not met on a single day. On this issue the case laws CST Vs. L.R. Sharma & Co. : [2014(33) STR 319 (Tri -Del)] and CCE Vs. Honda Motorcycles & Scooters India P. Ltd. [ : 2014 (302) ELT 388 (Tri -Del)] have already decided the issue in favour of the assessees. Appeals filed by the Revenue filed on the basis of an invalid Review authorization deserve to be dismissed as not maintainable on this ground alone, without further going into the merits of these proceedings.