TMI Blog2003 (7) TMI 528X X X X Extracts X X X X X X X X Extracts X X X X ..... he Central Excise Act, 1944 in order to satisfy himself as to the legality, propriety and correctness of the stay order and found that the order-in-original was not legal, proper and correct and therefore directed the Assistant Commissioner to file a fresh application in proper form with the Commissioner of Central Excise (Appeals) in terms of sub-section (4) of Section 35E of the Act. The appeal was rejected by the Commissioner (Appeals) on the ground of maintainability as the direction of the Commissioner of Central Excise was to the Assistant Commissioner Headquarters (R T), Nagpur while the adjudication order was passed by the Assistant Commissioner, Bhandara Division. In other words he held that direction for filing the appeal could be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CCE v. Falcon Tyres Limited, 1997 (91) E.L.T. 649 wherein the Tribunal held that Section 35E(2) requires a broad interpretation, reading it in harmony with Section 35E(4) of the Act and that the Collector can issue direction to the adjudicating officer or any other officer and the officer directed by the Collector or an officer authorised by the latter can file the application; and Sun Export Corporation v. CC, 1989 (42) E.L.T. 308 wherein it was held that a harmonious construction of the provisions of two sub-sections 129D(2) and 12D(4) of the Customs Act, 1962 would indicate that in cases where the adjudicating authority is unavailable for being directed, it is reasonable to conclude that the direction can be fulfilled by another Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dodara, 2002 (143) E.L.T. 112 the Bench has noted the decision of Dhampur Sugar Mills v. CCE and held that the expression such authority means an officer of the same level as the one who had passed the adjudication order and overruled the objection of the assessees that the very Commissioner who passed the adjudication order must file the application under Section 35E(4). In the present case both the Assistant Commissioner who passed the adjudication order and the Assistant Commissioner to whom the direction for filing the appeal was given are officers of the same level. Therefore the appeal filed before the Commissioner (Appeals) is maintainable. Since there is no finding on the merits of the admissibility of the credit I set aside the i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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