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2016 (6) TMI 514 - AT - Central ExciseMaintainability - Demand of duty - Directions were given by Commissioner to Dy. Commissioner to challenge the same by way of filing of an appeal before the commissioner (Appeals) - Whether the Commissioner is required to direct “Such Authority” to apply to Commissioner (Appeals) for determination of such points arising out of the decision - Section 35 E (2)of Central Excise Act, 1944 - Held that:- it is found that there are conflicting judgments of the Tribunal on the said issue. Whereas in some of the decisions of the Tribunal, it has been held that Section 35 E (2) cannot be interpreted to mean that such directions are required to be given only to the adjudicating Authority or any other officer higher in rank than the Adjudicating Authority. On the other hand, there are Tribunal’s decisions laying down that if the directions are not given to the Adjudicating Authority, the provisions of Section 35 E (2) of Central Excise Act, 1944 stands violated, thus making the appeal filed by any other authority as not maintainable. As there are two decisions of the Tribunal, interpreted and the applicability of the Supreme Court’s decision in the case of CCE Vs. M.M. Rubber Co. [1991 (9) TMI 71 - SUPREME COURT OF INDIA] is different. Therefore matter needs to be resolved by the larger Bench. For the said purpose, we place papers before the Hon’ble President for constitution of a Larger Bench to resolve the following question of law : - “Whether in terms of the provisions of Section 35 E (2) of the Central Excise Act, 1944, directions to file the appeal are required to be given by the Commissioner only to the very same Authority, who adjudicated the case or the same can be given to any other Authority.”
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