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2016 (9) TMI 423 - CESTAT NEW DELHI

2016 (9) TMI 423 - CESTAT NEW DELHI - 2016 (340) E.L.T. 513 (Tri. - LB) - 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 - Held that:- The Hon'ble High Court of Delhi in the case of C.C.E. vs. Maza Cosmetics [2006 (8) TMI 65 - HIGH COURT , DELHI] ruled that the Commissioner can .....

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the case of Silver Streak Welding Products India Pvt. Ltd. [2007 (9) TMI 222 - HIGH COURT BOMBAY]. Also the decision of the Apex Court in the case of MM. Rubber Co. [1991 (9) TMI 71 - SUPREME COURT OF INDIA] supports the view taken by the Hon'ble High Courts of Bombay and Delhi. Therefore, by following the decision of the Hon'ble High Court of Bombay and Delhi, we hold that the directions to file appeal are required to be given by the Commissioner only to the very same adjudicating authority is .....

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o views of the Tribunal on the issue of interpretation of Section 35E(2) of the Central Excise Act, 1944 (herein after referred to as the Act), referred to Larger Bench for resolving the following questions 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. 2. Ld. A.R .....

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ion that under Section 35E(2) Commissioner is empowered to direct such authority to apply to Commissioner (Appeals) for review of the order passed by the adjudicating authority lower in rank to the Commissioner. It is his further submission that the Commissioner has found the order passed by the subordinate authority is illegal and improper and hence there is a direction to file appeal. He would refer to the decision of the Tribunal in C.C.E., Bangalore vs. Falcon Tyres Ltd. - 1997 (91) ELT 649 .....

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lso rely on the Tribunal decision for same proposition in C.C.E., Nagpur vs. Hari Vishnu Packaging - 2004 (173) ELT 280 (Tri-Mumbai); C.C.E., Meerut -1 vs. Blue Star Spinning Mills Ltd. - 2005 (182) ELT 125 (Tri-Dei.); C.C.E, Visakhapatnam vs. Nagachandra Cements (P) Limited - 2007 (218) ELT 402 (Tri-Bang.); Roots Industries Ltd. Vs. C.C.E., Coimbatore - 2008 (230) ELT 286 (Tri-Chennai). He would refer to the Larger Bench decision of this Tribunal in the case of C.C.E., Indore vs. Lloyd Insulati .....

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the Bombay High Court in C.C. & C.E., vs. Supreme Industries Ltd., -2008 (226) ELT 338 (Bom.) for the proposition that by directing any officer, the Revenue is not deciding the lis between the party but is only approaching higher fora to decide the lis as also for the proposition that once the appeal is filed, the appellate authority has to decide the case on merits and should not dispose the appeal summarily. He would also refer to the decision of Larger Bench of the Hon'ble Delhi High .....

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Silver Steak Welding Products India Pvt. Ltd. 2008 (226) ELT 704 (Bom.) and of the C.C.E.vs. Maza Cosmetics 2007 (207) ELT 200 (Del.) wherein the provision of Section 35E has been examined. He produced copy of the judgment. He would also rely on the decision of the Hon'ble Supreme Court in the case of M.M. Rubber Co. - 1991 (55) ELT 289 (SC) more specifically for the same proposition. 4. We have considered the submissions made from both sides and perused the records. 5. The question referre .....

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ppeals) for the determination of such points arising out of the decision or order as may be specified Central Excise in his order. 6. The above said provisions clearly indicate that for filing an appeal against the order passed by the adjudicating authority subordinate to Commissioner, he shall call for and examine the record of any proceeding; the Commissioner can direct the adjudicating authority to file appeal. 7. The very same question as is posed to Larger Bench was considered by the Hon .....

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. This Court in Central Excise Appeal No. 3 of 2004 and other connected Appeals decided on April 23, 2007 construing the language of Section 35E(2) as it then stood has held that the power could have been conferred only on the Adjudicating Officer. In the instant case the authority on whom the power was conferred is not the Adjudicating Authority and consequently we find no error or illegality committed by the Tribunal. Hence question of law as raised does not arise, Hence appeal dismissed" .....

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oming to the conclusion that the appeal was not competent. We are not in agreement with the learned Counsel for the Revenue since we are of the opinion that the provisions of Section 35E(2) and Section 35E(4) of the Act cater to two different stages or steps in the process. In terms of Section 35E(2) of the Act, the Commissioner can only give a direction to the adjudicating authority to file an appeal. After such a direction is given, then the provisions of Section 35E(4) of the Act will apply a .....

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als) and thereby completely by-passed the adjudicating authority. 4. In other words, the Commissioner straightway resorted to the second stage or took the second step without passing any order in the first stage, namely, a direction to the adjudicating authority to file an appeal. In this view of the matter, the action of the Commissioner in by-passing Section 35E(2) of the Act and straightway resorting to action under Section 35E(4) was not permissible. Under the circumstances, we are of t .....

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