Commissioner (A) has no knowledge how to deal with appeals filed before him
A comment as scathing as this should make one hang his head in shame. But then, when were such observations of the CESTAT taken in the right spirit by the lower formations - the best they do is offer some weak justification! At least, the NACEN should incorporate the guidelines given in this order as a part of its curriculum.
Be that as it may, in the present case, the adjudicating authority had imposed a penalty under rule 26 of CER, 2002 on the appellant and the same was challenged before the Commissioner (Appeals) by filing an appeal and also an application for waiver of pre-deposit. Instead of disposing of the stay application first, the Commissioner (Appeals) heard the stay application as well as the appeal together and dismissed the appeal for non-compliance of Section 35F of the Central Excise Act.
And this is what the CESTAT held -
“4. In this case the appellants have challenged the adjudication order before the Commissioner (Appeals) wherein penalties were levied on the appellants. They also sought waiver of pre-deposit of the penalties imposed on them during the pendency of the appeal before the Commissioner (Appeals). The Commissioner (Appeals) without considering the stay application passed the impugned order. In fact the Commissioner (Appeals) has taken stay application as well as appeal together and thereafter he dismissed the appeal for non-compliance of Section 35F of the Central Excise Act. In these circumstances, I find that the Commissioner has no knowledge how to deal with the appeals filed before him. In fact, the first duty of the Commissioner (Appeals) is to dispose of the stay application and if he is not satisfied with the arguments advanced for waiver of pre-deposit, he may ask for pre-deposit but while considering the stay application along with appeal together, he has no power to dismiss the appeal for non-compliance of Section 35F of the Central Excise Act.”
With these observations, the order was set aside and the matter remanded to the Commissioner (Appeals) to consider the stay application filed by the appellants and thereafter to decide the appeal.
But why do these things happen? Is it that a Commissioner (Appeals) does not know that he should dispose of the Stay Petition before disposing of the main appeal? Was he under orders to help boost up Revenue?