2017 (1) TMI 1821

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....fore, prayed that this writ petition be accepted; the Hon'ble Court may be pleased to call for the entire record of the case and: (i) by issuance of writ of certiorari or any other appropriate wit, order or direction in the nature thereof, the order dated 10th May, 2007 passed by the respondent No. 2 be quashed and set aside; (ii) by any other appropriate writ, order or direction in the nature thereof, the Hon'ble Court may pleased to set aside the order dated 10.05.2007 (Anx.-3). The Hon'ble Court may further be pleased to hold that since the amount was deposited by the respondent in the name of excise duty which was not actually leviable by law therefore the amount so deposited will not be in the name of duty....

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....ct; his orders are those of the central government itself. The section repeatedly refers to the "Central Government" and not to any official or functionary thereof. The Joint Secretary acts for the Central Government in passing the order. A perusal of the impugned order shows that there is repeated reference to the Central Government; thus the decision is of the Central Government itself. If this position is realised, it would appear clear that the contention of the petitioner that the writ petition has been filed not against the Central Government but against a decision of the Joint Secretary acting as revisionary authority is untenable. There is finality attached to the order which cannot be questioned by functionaries under the Act since....

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....ows that if the Central Government is of the view that the order of the Commissioner (Appeals) is legal and proper and requires no interference (by way of enhancement of duty, fine or penalty), there is no right conferred upon the Commissioner of Central Excise to challenge the decision to drop the proceedings. If the Commissioner of Central Excise chooses to take the appeal route against the order of the Commissioner (Appeals) to the CESTAT, he may lawfully pursue his challenge right up to the Supreme Court. But if he chooses to take the revisionary route and question the legality and propriety of the order of the Commissioner (Appeals) before the Central Government under section 35EE, he must, if the decision of the Central Government goe....