2002 (2) TMI 259 - AT - Central Excise

Appellate Tribunal overturns Central Excise order for lack of authority, directs review by appropriate adjudicator

The Appellate Tribunal CEGAT, Bangalore set aside an order-in-original, finding the Superintendent of Central Excise lacked the authority to issue it. The ... Competency of adjudicating officer - finalisation of provisional assessment - setting aside order for lack of jurisdiction - remand for fresh adjudication with opportunity - waiver of pre-deposit and interim stayCompetency of adjudicating officer - finalisation of provisional assessment - setting aside order for lack of jurisdiction - Order passed by the Superintendent of Central Excise finalising the provisional assessment was not competent and is unsustainable. - HELD THAT: - The Tribunal examined the order dated 12-3-2001 passed by the Superintendent of Central Excise and found that the Superintendent was not competent to finalise the provisional assessment in the manner adopted. The Commissioner (Appeals) did not give a categorical finding on this point and did not apply his mind to the competency issue. Having regard to the lack of jurisdiction in the officer who passed the order, the Tribunal held that the order cannot be sustained in law and set it aside. [Paras 7]Order of the Superintendent finalising provisional assessment is set aside as the Superintendent was not competent to pass it.Remand for fresh adjudication with opportunity - Matter remanded to the competent adjudicating authority for fresh examination and decision. - HELD THAT: - Although the order of the Superintendent was set aside, the Tribunal directed that the adjudicating authority having jurisdiction may re-examine the issue afresh and pass an appropriate order in accordance with law after giving the party an opportunity. The remand contemplates fresh consideration rather than affirmation of the impugned order. [Paras 7]Issue remanded to the competent adjudicating authority for fresh adjudication with opportunity to the party.Waiver of pre-deposit and interim stay - Requirement of deposit for hearing the appeal was dispensed with and the appeals were admitted for regular hearing. - HELD THAT: - On a limited issue and with the consent of both parties, the Tribunal disposed of the stay matter by dispensing with the amount required to be deposited for the purpose of hearing the appeal and proceeded to take the appeals on regular hearing. This was a procedural direction resolving the interim stay/pre-deposit application. [Paras 4]Deposit requirement dispensed with and appeals taken up for regular hearing.Final Conclusion: The Tribunal set aside the Superintendent's order of 12-3-2001 as the Superintendent lacked competence to finalise the provisional assessment, remanded the matter to the competent adjudicating authority for fresh consideration after giving opportunity to the party, and dispensed with the pre-deposit requirement so the appeals proceed to regular hearing. The Appellate Tribunal CEGAT, Bangalore heard two appeals filed by the appellants regarding an order-in-original. The Tribunal found that the Superintendent of Central Excise was not competent to pass the order and set it aside. The matter was directed to be examined afresh by the appropriate adjudicating authority. The appeals were disposed of accordingly.