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TMI Blog2006 (6) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... y, Member (T) and Shri Krishna Kumar, Member (J) Shri U. H. Jadhav, JDR, for the Appellant. Shri S.P. Mathew, Advocate, for the Respondent. [Order per: Chittaranjan Satapathy, Member (T)]. -1. Heard both sides. The order was reserved on the preliminary objection raised by the learned Advocate to the effect that nowhere in the appeal filed by the applicant Commissioner it has been mentioned that the Commissioner has formed an opinion that the order passed by the lower appellate authority is not legal or proper. In this regard, he relies on the Apex Court decision in the case of Collector of Central Excise, Vadodara v. Rohit Pulp Paper Mills - 1998 (101) E.L.T. 5 (S.C.). We have not heard as yet either side on the merits ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso file the appeal. 3. We now deal with the other ingredient of Section 35B(2) that the Commissioner should have formed an opinion that the order of the Commissioner (Appeals) is not legal or proper. In Rohit Pulp (cited supra), the facts were slightly different. In the said case, the Collector simply authorized the Superintendent to file an appeal without applying her mind as was evident from the relevant authorization and note sheet order. In the instant case, we find that the Commissioner has himself filed the appeal running to 23 pages. He has dealt with each and every issue relating to the case at hand. The entire thrust of his appeal is that the order passed by the Commissioner (Appeals) is not correct and legal and his praye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . [Contra per: Krishna Kumar, Member (J)]. - I have perused the order recorded by the Hon'ble Member (Technical). I am not convinced with the order recorded by him. Provisions of sub-section (2) of Section 35B of the Central Excise Act, 1944 as is relevant for the purpose of the case is already reproduced in the order of the ld. M (T). A bare perusal of the provisions shows that the Commissioner has to record his opinion that the order passed by the appellate Commissioner is not legal or proper and on such opinion having been formed, he may direct any Central Excise Officer authorized by him on his behalf to appeal in the appellate Tribunal against such order. The section in no way authorizes the Commissioner himself to file an appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the preliminary objection, I do not consider it necessary to go into merits of the case. The appeal needs to be dismissed as not maintainable. Sd/- ( Krishna Kumar) Member (Judicial) DIFFERENCE OF OPINION 7. Since difference of opinion has arisen between the Member (Judicial) and Member (Technical), the question has been formulated for reference to the 3rd Member :- "Whether in view of the facts and the legal position as explained in the order of Member (Technical) and Member (Judicial), the appeal of the Revenue is to be rejected on the preliminary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... formed an opinion that the order impugned is not legal and proper and as such the opinion formed by the learned Commissioner, Central Excise need not specify in specific terms about illegality and impropriety in the impugned order. As a matter of fact, the Memorandum of Appeal deals with statements of facts involved in the case and grounds of appeal would show errors on fact findings and issue of law, on which appeal is to be decided. In whatever manner or fashion one may express on the grounds of appeal to point out infirmities in the impugned order, it does not tantamount to formation of an opinion within the meaning of Section 35B(2) of Central Excise Act, 1944. The sub-section makes it clear that formation of an opinion about the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oints out as per Section 12E of the Central Excise Act, the Commissioner of Central Excise can perform the duties of any other Central Excise Officer sub-ordinate to himself and filing the appeal by the same Commissioner is no way defective. Thus the ld. DR justifies an act of Commissioner of Central Excise in filing this appeal by virtue Section 12E of the Central Excise Act. At this juncture, it is to be observed that Section 12E and Section 35B are provided in the Act to achieve different objectives and incorporated separately in different context in the Act. In case the Commissioner of Central Excise, intends to file the appeal himself by exercising the powers under the proviso of Section 12E of the Act nothing prevented him to do so su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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