By TIOL News Service

MUMBAI, JUNE 13, 2017: THIS is an appeal filed against the Order passed by the Dy. Commissioner of Central Excise.

On a query raised by the bench regarding the maintainability of the appeal,the appellant submitted that the appeal was filed against Dy. Commissioner's order before the Tribunal for the reason that preamble of the order indicated that against the impugned order appeal lies before the Tribunal Mumbai.

The AR submitted that appeal against the order of the Dy. Commissioner lies before the Commissioner (Appeals) and not before the Tribunal and, therefore, this appeal is not maintainable and deserves to be dismissed on this threshold point.

The Bench noted that the preamble to the order passed by the Dy. Commissioner clearly mentioned that "the appeal lies before West Regional Bench of the Tribunal".The scanned preamble was reproduced by the Bench in its finding.

Nonetheless, the CESTAT observed -

"…From the above preamble it can be seen that the appellant was misguided regarding the forum before whom the appeal against order of the Dy. Commissioner is to be filed, therefore, appellant have filed the present appeal wrongly before this Tribunal. However, this Tribunal as per Section 35B of Central Excise Act, 1944 can entertain only those appeals which are filed either against Order of the Commissioner as an adjudicating authority or against the order passed by the Commissioner (Appeals) under Section 35A. Since in the present case, order passed by the Dy. Commissioner and against which appeal lies before the Commissioner (Appeals) this Tribunal has no jurisdiction to entertain the present appeal,…"

Theappeal was dismissed as non-maintainable.

(See 2017-TIOL-1992-CESTAT-MUM )