Commissioner (Appeals) not utilizing power to make further enquiries – Board's directions
SECTION 35A of the Central Excise Act, 1994 prescribes the procedure in appeal to be followed by Commissioner (Appeals) while deciding the appeals filed before him under Section 35/ 35E of the Central Excise Act 1944. Similar provisions exist under Section 128A of the Customs Act, 1962 and Section 85 of the Finance Act, 1994.
Section 35A (3) of the Central Excise Act, 1994 reads as follows-
“The Commissioners(Appeals) shall, after making such further enquiry as may be necessary, pass such order, as he thinks just and proper, confirming, modifying or annulling the decision or order appealed against;”
Further, Rule 5(4) of Central Excise (Appeals) Rules, 2001 provides that nothing contained in the said rule shall affect the power of Commissioner (Appeals) to direct the production of any document, or the examination of any witness to enable him to dispose of the appeal.
Board has noted that Commissioner (Appeals) are not resorting to the mechanism of further enquiry as provided to them under the statutes, in such cases where it may be necessary, before passing the orders.
In view of the provisions contained in Section 35A (3) of Central Excise Act and the rules made there under, Board directs that the Commissioners (Appeals) should resort to enquiry in such appeals as may be necessary, in the facts and circumstances of the case before passing a just and fair order in accordance with the provisions of the Act.
CBEC Letter F.No.275 /34/2006- CX.8A , Dated: February 18, 2010 with Annexure vide Letter F.No . , Dated: July 25, 2008