TMI Blog2010 (10) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... is case is not of Review Committee hence, the authorisation is defective - E/2576/2008-SM(BR) - 1120/2010-SM(BR)(PB) - Dated:- 12-10-2010 - Shri Ashok Jindal, JJ. REPRESENTED BY : Shri K.P. Singh, DR, for the Appellant. Shri Abhishek Jaju, Advocate, for the Respondent. [Order]. Revenue has filed this appeal against the order of the Commissioner (Appeals) who allowed the respondent s appeal with consequential relief and with direction to allow utilisation of Cenvat credit which is still lying unutilised in respondent s Cenvat credit account since the transfer of the factory. 2. Ld. Advocate for the respondent took the preliminary issue that the appeal is not maintainable on the following grounds :- (a) The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e situation who is authorised to file the appeal which is reproduced here as under :- Section 35B. Appeals to the Appellate Tribunal. - (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal, against such order :- (a) a decision or order passed by the Commissioner of Central Excise as an adjudicating authority; (b) an order passed by the Commissioner (Appeals) under Section 35A; (c) an order passed by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act (54 of 1963) (hereafter in this Chapter referred to as the Board) or the Appellate Commissioner of Central Excise under Section 35, as it stood immediately before the appointed day; (d) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein is entitled to prefer an appeal against such an order before the Appellate Tribunal. Under Section 35(B)(1)(b), an order passed by Commissioner (Appeals) under Section 35A of the Act is also appealable; similarly the order made by Appellate Commissioner of Central Excise under Section 35, as it stood immediately before the appointed day, it is also appealable under clause (c) of sub-section (1) of Section 35B of the Act. 10. However, when one comes to sub-section (2) of Section 35B of the Act it becomes clear that the right statutorily granted to file an appeal under sub-section (1) of Section 35B of the Act is defined by provisions of sub-section (2) of Section 35(B) of the Act when Commissioner intends to prefer an appeal challengi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vadodara v. Rohit Pulp Paper Mills (supra) may be usefully referred to. The provisions of Section 35B(2) clearly require as a pre-requisite to the direction to any Central Excise Officer to file an appeal the formation of the opinion by the Collector that the order against which the appeal is to be filed is not legal or proper . 13. The contention that where Commissioner decides to file the appeal himself, he need not form an opinion, is an incorrect reading of the requirement of the provision. There could be innumerable instances where, even after forming an opinion that the order of the appellate authority is not legal or proper, the Commissioner may decide not to prefer an appeal, for example in a case where the tax effect is low or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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