2017 (4) TMI 433

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....nt ORDER This revenue's appeal is directed against Order-in-Appeal passed by the Commissioner (Appeals), Mumbai I whereby the ld. Commissioner allowed the appeal filed by the respondent. 2. The fact of the case is that the appellant is engaged in the process of embroidery on cotton and man- made fabrics falling under Chapter heading 58.05 of Central Excise Tariff Act 1985. They are working ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....s run, they noticed that the assessee had debited central excise duty only on three machines for two or three shifts when all four machines were working for all three shifts. Accordingly, show-cause notice was issued alleging the misdeclaration of the production. The appellant took a stand that only three machines were working however the demand along with interest and penalty was confirmed by the....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....risdiction of the Commissioner. Only on this ground the order does not sustain. 3. Shri N.N. Prabhudesai, Supdt. (AR) appearing for the revenue reiterates the findings in the impugned order. He placed reliance on the following judgments. * CCE vs. Calama Industries Ltd. 2003 (162) ELT 550 * CCE vs. Neminath Fabrics P. Ltd. 2010 (256) ELT 369 4. Shri Bharat Raichandani, ld. counsel for the r....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....d the lapse exercising the power under Rule 96ZM. As per Rule 96ZM, only jurisdictional Commissioner has power to condone the lapse, therefore the Commissioner (Appeals) cannot exercise the power which is vested in Commissioner. The right course on the part of the Commissioner (Appeals) was that he should have directed the adjudicating authority to first ascertain the decision of the Commissioner ....