ORDER
S.L. Peeran, Member (J)
1. The Revenue appeal arises from OIA No. 8/2004 dated 26.03.2004. The Commissioner (Appeals) rejected the Revenue appeal on the ground that the authorization to file the appeal in terms of Section 35E (2) of CE Act, was given by the jurisdictional Commissioner to the Deputy Commissioner while the appeal had been filed by the Assistant Commissioner of Central Excise. The respondents have been served notice through the Commissioner yet they have not appeared. Hence, the appeal is taken up for decision on merits.
2. The learned SDR submits that the status of Deputy Commissioner and Assistant Commissioner is the same and they both perform the same function and have same powers. Therefore, the Commissioner (Appeals)’s finding that the Assistant Commissioner was not authorized to file the appeal is not in terms of law. He relies on the judgment rendered by the Northern Bench in the case of CCE, Meerut-I v. Blue Star Spinning Mills Ltd. – 2005 (182) ELT 125 (Tri.-Del.) = (2005-TIOL-52-CESTAT-DEL) on the same facts and circumstances. The Revenue appeal was allowed and the matter was remanded for de novo on merits. He also relies on earlier order of the Tribunal rendered by the Mumbai Bench, in the case of CCE, Nagpur v. Hari Vishnu Packaging – 2004 (173) ELT 280 (Tri.-Mumbai).= (2004-TIOL-985-CESTAT-MUM). He submits that the appeal is required to be remanded to the Commissioner (Appeals) for a decision.
3. On a careful consideration, we notice that the pleas raised by the Revenue are just and proper. The powers of Deputy Commissioner and Assistant Commissioner are the same and in the light of the two judgments on this very point on the same facts and circumstances, the impugned order is required to be set aside and the matter remanded to the Commissioner (Appeals) for a decision on merits. The Revenue appeal is allowed by remand to the Commissioner (Appeals) to decide the case on merits after granting an opportunity to the assessee in terms of the Principles of Natural Justice.