TIMKEN INDIA LTD. Vs. COMMISSIONER OF CENTRAL EXCISE

JUDGEMENT

(1.) AT the very threshold Mr. P.K. Prasad, learned Standing Counsel for the Central Government submitted that under Sec. 35B of the Central Excise Act, 1944 the petitioner has an alternative remedy of filing appeal before the Appellate Tribunal inasmuch as Clause (a) of Sub -section (1) of Sec. 35B clearly stipulates, lays down and provides that any decision or order passed by the Commissioner of Central Excise as an adjudicating authority is appealable before the Appellate Tribunal Sec. 2(a) of the Central Excise Act, 1944 defines an "adjudicating authority" to mean any authority competent to pass any order or take any decision under the Act. What has been challenged in this petition by the petitioner in fact is an order (which may also be called as a decision) passed by the Commissioner in terms of Rule 16(3) of the Central Excise Rules, 2002. Even though Dr. Debi Pal, learned Sr. Counsel appearing for the petitioner very vehemently argued that the Commissioner did not have any jurisdiction to pass the impugned order or take the impugned decision, we find that the question of jurisdiction is not involved in this case, inasmuch as Rule 16(3) (Supra) clearly enjoined upon the Commissioner to take a decision if the applicability of Sub -rules (1) and (2) of Rule 16 was involved. The Commissioner apparently has taken a decision and has passed an order under Sub -rule (3) of Rule 16 (Supra) and, therefore, the decision/order squarely falls within the ambit and scope of Sec. 35B(1)(a) of the Central Excise Act, 1944 and hence is appealable before the Appellate Tribunal.

(2.) WE must hasten to add with fullest responsibility at our command that we are dismissing this petition only on the ground of the petitioner not having availed of the alternative remedy. We have not at all gone, into the merits of the controversy forming the subject -matter of this petition. All issues and questions raised in this petition are left open to be decided by the Appellate Tribunal.

(3.) AT this stage, Dr. Debi Pal submits that we should make an observation with respect to the limitation aspect of the appeal, if the petitioner decides to file any appeal before the Appellate Tribunal.