Decided on February 02,2015

Gkn Sinter Metals Pvt. Ltd. Appellant
Commissioner Of C. Ex., Pune -I Respondents


P.K.JAIN, MEMBER (T) - (1.)
(2.)APPLICANT was issued the show cause notice by the registry as their appeal is not maintainable against Commissioner's direction rejecting the permission under Rule 4(4) of Central Excise Rules, 2002. Heard.
Ld. Counsel for the applicant submitted that they are having difficulty in storing the finished goods in their factory premises and want to undertake construction activity in the said place. For this purpose they want to clear goods temporarily and store outside the factory without payment of duty. The Commissioner has rejected their application and as per the provision of Section 35B(1)(a) the appeal lies to the Tribunal. Learned Counsel further submitted that the said provision provides that any person aggrieved by any decision or order passed by the Commissioner of Central Excise as an adjudicating authority may appeal to the Appellate Tribunal. Learned Counsel further submits that Section 2(a) defines adjudicating authority means any authority competent to pass any order or decision under this Act but does not include C.B.E. & C, Commissioner (Appeals) or Appellate Tribunal. Learned Counsel further submitted that since the Commissioner has decided not to grant permission, they have approached this Tribunal against the said decision.

(3.)LD . AR, on the other hand opposed and submitted that matter involved is administrative decision. Each and every administrative action of the Commissioner is not open for approach to the Appellate Tribunal. We have gone through Section 35B(1)(a), as also definition of the adjudicating authority under Section 2(a). We find that Rule 4(4) of the Central Excise Rules provides that the Commissioner may in exceptional circumstances having regard to the nature of the goods and shortage of storage space at the premises of the manufacturer, where the goods are made, permit manufacturer to store his goods in any other place outside such premises, without payment of duty subject to such condition as he may specify. Since the Commissioner has passed the order under the said rule, in our view this Tribunal is competent to hear an appeal against the said decision of the Commissioner and we accordingly, hold that the appeal is maintainable. We also find that the applicant has also filed early hearing application. Keeping in view the nature of the dispute, early hearing application is allowed. The case may be listed on 17 -3 -2015.
(Dictated in Court)


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