TMI Blog2006 (11) TMI 454X X X X Extracts X X X X X X X X Extracts X X X X ..... ntainable in law. Both sides have relied on large number of judgments to contest this issue. 2. It is the submission of the learned Counsel that the appeal is not maintainable, as the concerned Committee of Commissioners cannot directly file the appeal before CESTAT in terms of the proviso (2) of Section 35B(2) of Central Excise Act. The Committee of Commissioners is appointed by the Board to authorize the concerned Commissioner to file the appeal on reasons set out by them. In the present case, no such authorization has been given by the Committee of Commissioners with the words not legal and proper instead they have directly filed the appeal. He relies on 3-Member judgment of the Tribunal rendered in the case of CCE v. E.I.D. Parry Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terest of Revenue should be safeguarded and the Miscellaneous Application permitting authorization and new set of grounds should be allowed. The prayer in the Miscellaneous Application is to rectify the defect inasmuch as that the Miscellaneous application seeks permission from the Tribunal to rectify the defect in the authorization, inasmuch as the Committee of Commissioners have now directed the concerned Additional Commissioner to file the appeal. The Miscellaneous Application also seeks for changing the grounds in the appeal memo and fresh grounds have been brought in, which was not approved or indicated by the earlier Committee of Commissioner. Therefore, the Advocate for the Respondent resists this prayer of Revenue also on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rect any Central Excise Officer authorized by him in this behalf (hereafter in this any Chapter referred to as the authorized officer) to appeal (on its behalf) to the Appellate Tribunal against such order. In terms of the above provisions, the Committee of Commissioners of Central Excise in their opinion if the order passed by the Appellate Commissioner (A) under Section 35A is not legal and proper direct any Central Excise Officer authorized by them in their behalf to file the appeal before the Appellate Tribunal against the said order. In the present case, the Committee of Commissioners has directly filed the appeal without expressing their opinion about the impugned order passed by the Commissioner (A), being as not legal and proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utside the scope of Section 35B(2) of Central Excise Act. In these cited cases, the Commissioner instead of authorizing any officer, had himself filed the appeal and such infirmity has been held to be not curable and the appeal has been dismissed. The Judicial Member in the said order in his opinion also held that the Apex Court in the case of CCE v. Rohit Pulp Paper Mills (supra) clearly held that if the law prescribes a thing to be done in a particular manner, it has to be done in that manner alone and it cannot be done in any other manner. This opinion of the West Region Bench rendered in the case of CCE v. Shree Ganesh (supra) clearly applies to the facts of the case. The judgments cited by the learned Consultant pertain to defects in t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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