TMI Blog2006 (7) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... S/Shri C. Lama, R.B. Pardeshi, JDRs, for the Appellant. Shri Vishal Agarwal , C.A. , for the Respondent. [Order per: K. K. Agarwal, Member (T)]. - 1. The respondent in this case were issued show cause notice seeking to deny them Modvat credit, on certain items of capital goods which do not appear to satisfy the definition of capital goods under Rule 57Q of the Central Excise Rules, 1944. The show cause notice was adjudicated by the Addl. Commissioner who held these items as eligible items of capital goods entitled to Modvat credit and accordingly allowed the Modvat credit. 2. In pursuance of the powers conferred under Section 35E(2) of the Central Excise Act, the Commissioner of Central Excise, called for and examined ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Commissioner of Central Excise' in his order". It was submitted that the Commissioner (Appeals) has failed to notice that the expression "such authority" used in the said sub-section is also to be qualified by the clause "as may be specified by the Commissioner of Central Excise in his order". The word "such authority" is also to be qualified by the clause "as may be specified by the Commissioner in his order" is also established from the contents of sub-section (4) of the Section 35E(2) which reads as under: "Where in pursuance of an order under sub-section (1) or sub-section (2) the adjudicating authority or the authorised officer makes an application to the appellate Tribunal or the Commissioner (Appeals)…………… to such application". ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner, Hyderabad v. Usha Conductors (P) Ltd. 2005 (190 E.L.T. 378 (Trib.). Further the decision in Blue Star Spinning Mills Ltd. has considered the Supreme Court's decision in Collector v. M.M. Rubber Co. which was duly distinguished. In view of above it was submitted that order of the Commissioner's (Appeals) should be set aside and the Addl. Commissioner's order should be restored. 5. The Learned Advocate for the respondent while referring to the provisions under Section 35E(2) and Section 35E(4) submits that the Section 35E(4) provides for making an application by adjudicating authority or authorised officer to the appellate tribunal or the Commissioner (Appeals) within the period of 3 months from the date of intim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the tribunal also distinguish the decision of the Tribunal in the case of Falcon Tyres Ltd . and Sun Export Corporation by holding that the same had been rendered prior to the Supreme Court's decision in the case of Collector v. MM. Rubber. 8. It was submitted that the department has erred in placing reliance on the decision of the Tribunal in the case of C.C.E. v. Blue Star Spinning Mills Ltd., 2005 (182) E.L.T. 125 which decision has been specifically followed in the case of C.C.E. v. Usha Conductors (P) Ltd. inasmuch as the decision in the case of Blue Star Spinning Mills Ltd. overlooks the facts that Section 35E(2) specifically provides that the directions to file an appeal can only be to an adjudicating authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bombay High Court in the case of Golden Tobacco Company Ltd. v. Union of India, 1983 (14) E.L.T. 2238 (Bom.) wherein in paragraph 20 the Hon'ble High Court has held that obiter of the Supreme Court decision is also binding. To the same effect is the decision of the Madras High Court in the case of Supdt. of Central Excise, Kottayam v. MRF, 1979 (4) E.L.T. J89 (Mad.) wherein the High Court in paragraph 8 of the said decision held that the obiter dictum of the Supreme Court is binding." 10. It was accordingly submitted that the Commissioner (Appeals) order is correct in law and should not be interfered with, 11. We have considered the submission. For better understanding the relevant extract of Section 35E(1), (2) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der under sub-section (1) or sub-section (2) to the adjudicating authority, such application shall be heard by the Appellate Tribunal or the Commissioner (Appeals), as the case may be, as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals, including the provisions of sub-section (4) of Section 35Bshall, so far as may be apply to such application." 12. A careful reading of the Section reveals that the Legislature has conferred powers on the Board and the Commissioner of Central Excise to review orders of the adjudicating authority. According to Section 35E(1) the Board may direct the Commissioner who passed the adjudication order or any othe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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