G. EXPORTERS Vs. ADDL. COMMISSIONER OF CUSTOMS, BANGALORE

JUDGEMENT

(1.) THE appellant is seeking the stay of the operation of the Commissioner (Appeals)s order No. 29/2004, dated 27 -2 -2004 by which he has allowed the departmental appeal filed before him by the Assistant Commissioner of Customs and remanded the matter for de novo consideration. The short question raised by the appellant is that the authorisation in terms of Section 129D(2) has to be given to such authority, who passed the Order -in -Original, by the Commissioner of Customs to file an appeal before the Commissioner (Appeals). The Order -in -Original was passed by the Additional Commissioner and, therefore, the authorisation given by the Commissioner of Customs to the Assistant Commissioner to file an appeal before the Commissioner (Appeals) is not in terms of Section 129D(2). It is also stated that this aspect has been gone into by the Apex Court in the case of CCE v. M.M. Rubber Co. - 1991 (55) E.L.T. 289 (S.C.); and by the Tribunal in the cases of (a) Supreme Industries Ltd. v. CCE, Indore - 1999 (114) E.L.T. 1003 (Tribunal) and (b) Dhampur Sugar Mills Co. Ltd. v. CCE, Meerut - 1999 (108) E.L.T. 498 (Tribunal).

(2.) HEARD both sides in the matter.

(3.) ON a careful consideration, prima facie, we are satisfied that in terms of the provision of Section 129D(2), the authority who passed the order should be directed to file the appeal before the Commissioner (Appeals). While in the present case, the Commissioner of Customs has authorised the Assistant Commissioner to file the appeal who was not the authority who passed the Order -in -Original. Prima facie this plea, raised before the Commissioner (Appeals), ought to have been considered in appellants favour. However, the Commissioner (Appeals) has distinguished the judgments. Prima facie, the order is not legal and proper and hence the stay application is allowed. As the issue is settled the matter can be listed for final hearing. Appeal to come up for final hearing on 20th September, 2004. SDR may file para -wise comments if the department wishes to do so in this matter.