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Issues: Whether the Order-in-Original passed by the officer promoted as Commissioner on in-situ basis was passed in the capacity of Commissioner so that the appeal lay before the Customs, Excise and Service Tax Appellate Tribunal.
Analysis: The promotional office order showed that the officer had been promoted to the post of Commissioner and was directed to assume the charge of the promotional post on in-situ basis until regular posting. The adjudication order itself described him as Commissioner (in-situ), and no objection to his authority was raised at the time of adjudication. In that setting, the appellate remedy against the order of a Commissioner lay under Section 129A of the Customs Act, 1962. The reference in the order to filing an appeal before the Commissioner (Appeals) under Section 128A of the Customs Act, 1962 was treated as not controlling the true appellate forum.
Conclusion: The Order-in-Original was passed in the capacity of Commissioner, the appeal before the Tribunal was maintainable, and the challenge by the Revenue fails.
Final Conclusion: The statutory promotion and assumed charge were sufficient to treat the officer as Commissioner for adjudicatory purposes, and the Tribunal was the correct appellate forum against the order.
Ratio Decidendi: Where an officer has been promoted and directed to assume the promotional post on an in-situ basis, an adjudication order passed in that capacity is to be treated as an order of the Commissioner for determining the proper appellate forum.
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