TMI Blog2004 (12) TMI 164X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Commissioner Appeals, under the impugned Order, has dismissed the Appeal filed by the Department, being not maintainable since the appeal was not filed by the Additional Commissioner who had passed the Order being appealed against, relying upon the decision of the Supreme Court in CCE v. M.M. Rubber Co., 1991 (55) E.L.T. 289 (S.C.); Dhampur Sugar Mills v. CCE, Meerut, 1999 (108) E.L.T. 498 (Tri.) = 1999 (30) RLT 539 (CEGAT) and CCE, Nagpur v. Llyods Metals Engineering Ltd., 2003 (159) E.L.T. 1144 (Tri.) = 2003 (59) RLT 225 (CEGAT). 3.1 The learned Senior Departmental Representative submitted that sub-section (2) and sub-section (4) of Section 35E of the Central Excise Act have to be read harmoniously; that no doubt the expression "such Authority" has been used in sub-section (2) whom the Commissioner may direct to apply to the Commissioner (Appeals) for determination of points arising out of the decision passed by an Adjudicating Authority subordinate to the Commissioner; that sub-section (4) on the other hand uses the expression "the adjudicating Authority or the authorized officer" which goes to show that in addition to the Adjudicating Authority, authorized officer m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of C.C. C.E., Nagpur v. D.C.L. Polyester Ltd., 2003 (160) E.L.T. 932 (T). He also mentioned that in Dhampur Sugar Mills and Lloyds Metals Engineering Ltd., only sub-section (2) of Section 35E of the Act was considered and the languages used in sub-section (4) of Section 35E has not been considered. 4. Countering the arguments, Shri Alok Arora, learned Advocate, submitted that as per provisions of sub-section (2) of Section 35E of the Central Excise Act, only the Additional Commissioner who had adjudicated the matter could have been authorized by the Commissioner to file Appeal before the Commissioner (Appeals); that in all the decisions relied upon by the learned Senior Departmental Representative, facts are different and as such these decisions are not applicable to the facts of the present matter; that the Tribunal has clearly held in CCE, Nagpur v. Llyods Metals Engineering Ltd., 2003 (159) E.L.T. 1144 (T) = 2003 (59) RLT 225 (CEGAT) wherein also the Commissioner had directed the Assistant Commissioner to file Appeal against Order-in-Original passed by the Additional Commissioner, the Tribunal has held that the Appeal filed by Revenue was not maintainable. The le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) provides the time limit within which the application is to be made to the Tribunal/Commissioner (Appeals) by the Adjudicating authority or the authorized persons; sub-section (4) also provides that such application shall be heard as an Appeal. Thus the intent of Section 35E is to provide an opportunity to the Department to examine the legality or propriety of decisions/orders passed by the subordinate officers and to file an Appeal in the appropriate Appellate Forum. 7.1 In the present matter, the Order-in-Original was passed by the Additional Commissioner whereas the Commissioner has directed the Assistant Commissioner under Section 35E(2) to file an application before the Commissioner (Appeals). The Commissioner (Appeals) has held the application as not maintainable as under Section 35E(2), the Additional Commissioner should have been authorized to file Appeal and should have filed it. The reason for arriving at this view is the use of expression "such Authority'" in sub-section (2) of Section 35E of the Act. He has also relied upon certain decisions which have been reiterated by the learned Advocate for the Respondents. On the other hand, the learned Senior Departmental R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7.3 If the contention of the Respondent is accepted and a literal interpretation is made of sub-section (2) of Section 35E, the two sub-sections become inconsistent and it will defeat the purpose of Section 35E. It will render sub-section (4) devoid of any meaning or application in certain situations. The decision in Dhampur Sugar Mills has not considered the provisions of sub-section (4) of Section 35E at all. In fact the decision in the case of Mirah Exports was not referred to the Bench which decided the Appeal in Dhampur Sugar Mills case. The decision in the case of Llyods Metals has been passed by Single Member Bench only. On the other hand, the Tribunal again in the case of Sun Exports Corporation has applied harmonious construction and has held that the directive can be fulfilled by any Customs officer authorized by the Collector although he may not be the officer who had adjudged the case. In Falcon Tyres, the Tribunal has held that harmony between sub-section (2) and sub-section (4) of Section 35E of the Central Excise Act, "requires that sub-section (2) is understood in this manner as enabling Collector of Central Excise to issue direction either to the Adjudicating Au ..... X X X X Extracts X X X X X X X X Extracts X X X X
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