2016 (8) TMI 290

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....-. In addition, he confirmed interest and imposed penalty of Rs. 80,000/- on the assessee in terms of Rule 25 of the Central Excise Rules, 2001 read with Section 11AC of Central Excise Act, 1944. 2. The said order of the Assistant Commissioner was challenged by the Revenue before Commissioner (Appeals) with a prayer to enhance the penalty equal to the duty amount. At that stage, the appellant also filed cross-objections against the same order with a request to Commissioner (Appeals) to consider the said cross-objections as an appeal filed by the assessee. 3. The Commissioner (Appeals) vide his impugned order rejected the appeal of the Revenue by observing that the quantum of penalty provided under Section 11AC of the Central Excise Ac....

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....e authorized officer makes an application to the Appellate Tribunal or the 10[Commissioner (Appeals) within a period of three months from the date of communication of the order under sub-section (1) or sub-section (2) to the adjudicating authority, such application shall be heard by Appellate Tribunal or the 11 [Commissioner (Appeals), as the case may be, as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals, including the provisions of sub-section (4) of section 35B shall, so far as may be, apply to such application. On record, in terms of the sub-section 4, the application filed by the Revenue is required to be disposed off as if such appl....

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....s) are required to be considered as an appeal made by the assessee, even though separate appeal was initially not filed. 7. Ld. DR appearing for the Revenue has brought to our attention the Tribunal s decision in the case of GEE KAY Enterprises Vs. Commissioner of Central Excise Bangalore-I [2004 (171) ELT 487 (Tri.-Bang) wherein it was held that if an assessee has not chosen to file the appeal against that part of the order-in-original which is against him, he cannot file cross-objections against that part, in case the Revenue challenges the said order before the Commissioner (Appeals). 8. We have carefully gone through the said decision of the Tribunal. We note that though the provisions of Section 35E (4) and the provisions of Sect....