2006 (8) TMI 65 - HC - Central Excise

Appeal to Commissioner (Appeals) - Maintaiability of - Appeal not filed by proper officer - Direction can be given only to adjudicating authority and he authorise Deputy Commissioner directly directly - Appeal filed by Deputy Commissioner not maintainable

Summary

Issues:
Interpretation of Sections 35E(2) and 35E(4) of the Central Excise Act, 1944 regarding the authority to file an appeal.

Analysis:
The case involved a dispute where the Commissioner of Central Excise directed the Deputy Commissioner to file an appeal against an adjudication order passed by the Joint Commissioner. The Revenue contended that the Deputy Commissioner had the authority to file the appeal based on the direction given by the Commissioner. However, the High Court disagreed with this argument, emphasizing the distinction between the provisions of Section 35E(2) and Section 35E(4) of the Act. According to the Court, under Section 35E(2), the Commissioner can only direct the adjudicating authority to file an appeal. Only after such a direction is given, the provisions of Section 35E(4) come into play, allowing the appeal to be filed by the adjudicating authority or any other authorized officer. In this case, the Commissioner directly authorized the Deputy Commissioner to file the appeal without directing the adjudicating authority, thereby bypassing the proper procedure outlined in the Act.

The High Court highlighted that by directly resorting to the second stage without passing an order in the first stage, the Commissioner had violated the statutory framework set out in Section 35E(2) of the Act. The Court concluded that the Commissioner's action of bypassing the initial direction to the adjudicating authority and proceeding to Section 35E(4) was impermissible. Consequently, the Court upheld the decisions of the Commissioner (Appeals) and the Tribunal, ruling that the appeal filed by the Deputy Commissioner was not competent due to the procedural irregularity.

In the absence of any substantial question of law raised by the Revenue, the High Court dismissed the appeal, affirming the lower authorities' findings. The judgment serves as a reminder of the importance of adhering to the procedural requirements outlined in the statute, particularly when it comes to the hierarchical process of filing appeals under the Central Excise Act, 1944.