Appellate Tribunal jurisdiction requires an adjudicatory order, not a mere departmental communication refusing re-fixation.

An appeal to the Appellate Tribunal under the Central Excise Act lies only against a decision or order passed by the Commissioner acting as an adjudicating authority. A mere departmental letter stating that re-fixation of annual production capacity could not then be undertaken was not an adjudicatory order and did not confer appellate jurisdiction. As no appeal had been filed against the original fixation order or the later order confirming duty and penalty, the Tribunal could not entertain the challenge in the form filed. The appeal was therefore not maintainable and was dismissed.

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Issues: Whether an appeal under the Central Excise Act was maintainable against a letter communicating that re-fixation of annual production capacity did not arise, when no appeal had been filed against the original fixation order or the subsequent order confirming duty and penalty.

Analysis: Section 35B of the Central Excise Act, 1944 permits an appeal to the Appellate Tribunal only against a decision or order passed by the Commissioner of Central Excise as an adjudicating authority. The impugned communication was only a letter informing the appellant that re-determination could not be undertaken at that stage. It was not an adjudication order passed by the Commissioner in exercise of adjudicatory jurisdiction. In these circumstances, the Tribunal could not entertain the appeal in the form in which it was filed.

Conclusion: The appeal was not maintainable before the Tribunal and was dismissed.

Ratio Decidendi: An appeal lies to the Appellate Tribunal only against an adjudicatory order or decision of the Commissioner under Section 35B of the Central Excise Act, 1944, and not against a mere departmental communication.

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