2003 (7) TMI 528 - AT - Central Excise

Summary

Issues:
1. Maintainability of appeal before the Commissioner (Appeals) due to direction given by the Commissioner of Central Excise.
2. Interpretation of Section 35E(2) and 35E(4) of the Central Excise Act, 1944 regarding the authority to file an appeal.

Issue 1: Maintainability of appeal before the Commissioner (Appeals)
The case involved an adjudication order passed by the Assistant Commissioner of Central Excise, which was reviewed by the Commissioner of Central Excise, Nagpur. The Commissioner found the original order to be incorrect and directed the Assistant Commissioner to file a fresh application with the Commissioner (Appeals). However, the appeal was rejected on the grounds of maintainability as the direction for filing the appeal was given to a different Assistant Commissioner than the one who passed the adjudication order. The Commissioner (Appeals) held that the appeal could only be directed to the same officer who passed the original order. The Revenue appealed this decision.

Issue 2: Interpretation of Section 35E(2) and 35E(4)
The Revenue argued that the expression "such authority" in Section 35E(2) should be qualified by the clause "as may be specified by the Commissioner of Central Excise," and referred to Section 35E(4) which allows an application to be made by the adjudicating authority or the authorized officer. They contended that the mention of the authorized officer was to accommodate situations where the Commissioner authorizes another officer to file an appeal. The Revenue cited precedents where the Tribunal interpreted similar provisions broadly and allowed for flexibility in who could file an appeal. On the other hand, the respondents relied on a Tribunal decision that emphasized the need for the appeal to be filed by the Assistant Commissioner who passed the adjudication order under authorization from the Commissioner.

The Tribunal analyzed the provisions of Section 35E(2) and 35E(4) in light of previous decisions. They noted that Section 35E(2) allows the Commissioner to call for and examine the record of any proceeding where an adjudicating authority has passed a decision. The Tribunal considered the interpretation of "such authority" and found that it refers to an officer of the same level as the one who passed the adjudication order. In this case, both the Assistant Commissioner who issued the original order and the one directed to file the appeal were officers of the same level. Therefore, the Tribunal held that the appeal filed before the Commissioner (Appeals) was maintainable. The Tribunal set aside the impugned order and remanded the case for a fresh adjudication on the merits after providing a reasonable opportunity of hearing to the assessees.

In conclusion, the Tribunal allowed the appeal by remand, emphasizing the importance of interpreting the provisions of the Central Excise Act in a manner that allows for a fair and just process of appeal and review.