Commissioner of Central Excise, Ranchi vs LA Opala, RG Ltd.

Heard learned counsel for the parties. Tax Appeal No. 21 of 2009 has been preferred by the revenue as the revenue''s appeal has been dismissed by the Customs, Excise and Service Tax Appellate Tribunal, East Zonal Bench, Kolkata [2009 (245) E.L.T. 555 (Tri)] on the ground that Excise Appeal No. 346 of 2008 is not maintainable because of the reason that the Review Order dated 12-6-2008, authorizing for filing of the said appeal, has not been signed by the Chief Commissioner appointed by Gazette Notification as required under the law. The Customs, Excise and Service Tax Appellate Tribunal relied upon the orders of the Tribunal passed in the cases of CCE, Kolkata-III & IV v. Naffar Chandra Jute Mills & Others, dated 4-9-2008 [2008 (230) E.L.T. 244 (Tri. - Kol.)], 2008 (12) S.T.R. 513 and Tribunal''s order passed in CCE, Dibrugarh v. Kothari Products Ltd. & Others dated 26-9-2008 [2009 (237) E.L.T. 332 (Tri. - Kol.)] as well as in the case of 2009 (235) ELT 315 . However, the view taken by the Tribunal in above cases has been reversed by the Division Bench of this Court (by us) in Tax Appeal No. 2 of 2009, Commissioner of Central Excise, Jamshedpur v. T.R.F. Limited vide judgment dated 27-7-2012.

In view of the Division Bench decision of this Court delivered in the case of M/s. T.R.F. Limited (supra), appeal of the revenue being Tax Appeal No. 21 of 2009 is allowed and the impugned order dismissing Excise Appeal No. 346 of 2008 is set aside and the matter is remanded to the Tribunal for deciding the appeal of the revenue in accordance with law on merits.

Another Tax Appeal No. 22 of 2009 has been preferred by the revenue in view of the fact that the Tribunal has allowed the appeal of the assessee and set aside the demand raised by the Assessing Officer amounting to Rs. 6,89,516/-.

Since the assessee''s appeal being Excise Appeal No. 232 of 2008 has been allowed without considering the revenue''s appeal being Excise Appeal No. 346 of 2008, therefore, the merit of Excise Appeal No. 232 of 2008 could not have been decided without considering the Excise Appeal No. 346 of 2008 preferred by the revenue and, therefore, the order passed in Excise Appeal No. 232 of 2008 is also required to be set aside.

In view of the above reasons, the Tribunal''s order passed in Excise Appeal No. 232 of 2008 is also set aside. The matter is remanded to the Tribunal for deciding both the appeals on merits in accordance with law.

Learned counsel for the assessee submitted that in view of the amendment of 2010 by the Finance Act, 2010, the matter is required to be considered in the light of the said amended provision which has been given retrospective effect.

The assessee will be free to take this ground before the Tribunal.

We are making it clear that we have not made any comment on the merit of Excise Appeal No. 232 of 2008 or even Excise Appeal No. 346 of 2008 except on the question of law which has been decided by the Division Bench of this Court in M/s. T.R.F. Limited, therefore, the Tribunal will be free to decide both the appeal in accordance with facts and the law. Both tax appeals are allowed accordingly.