Appellate power to enhance penalty under Central Excise law extends to the Commissioner (Appeals) with due opportunity.

Section 35A(3) of the Central Excise Act, 1944 confers wide appellate power on the Commissioner (Appeals) to confirm, modify or annul the order under challenge, including enhancement of duty or penalty after giving the affected party due opportunity. The first appellate authority's power is coterminous with that of the adjudicating authority, so it can do what the adjudicating authority could have done, including considering a higher penalty in appropriate cases. On that basis, the view that the Revenue's challenge failed for want of jurisdiction in the appellate authority was not accepted, and the Revenue appeals were dismissed.

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Issues: Whether the Commissioner (Appeals) had power to enhance the penalty in the Revenue's appeal and whether the Revenue appeals were liable to be dismissed on the ground that the earlier assessee appeals had merged with the impugned order.

Analysis: The appellate power under Section 35A(3) of the Central Excise Act, 1944 is wide enough to confirm, modify or annul the order appealed against, and it also permits enhancement of duty or penalty after due opportunity to the affected party. The power of the first appellate authority is coterminous with that of the adjudicating authority, so what the adjudicating authority could have done can also be done by the Commissioner (Appeals). On that basis, the view that no higher penalty could be considered in the assessee's appeals was not accepted. The Revenue's challenge therefore did not fail on lack of jurisdiction in the appellate authority.

Conclusion: The Commissioner (Appeals) committed no error in refusing to interfere with the earlier appellate orders, and the Revenue appeals were dismissed.

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