2008 (10) TMI 483 - AT - Central Excise

Issues:
1. Authorization to file an appeal under Section 35E(2) of the Central Excise Act, 1944.
2. Interpretation of Section 35E(2) in conjunction with Section 35E(4) of the Act.
3. Validity of directions given by the Commissioner to the Deputy Commissioner to file an appeal.
4. Conflict of views among different High Courts on the issue.

Issue 1: Authorization to file an appeal under Section 35E(2) of the Central Excise Act, 1944:
The appeal was filed by the revenue against the order of the Commissioner (Appeals) who dismissed the appeal on the ground that the authorization under Section 35E(2) of the Act was improper as only an adjudicating authority can be authorized to file an appeal. The revenue contended that Section 35E(2) authorizes the Commissioner to direct the adjudicating authority to file an appeal, which should be interpreted broadly in harmony with Section 35E(4). The Tribunal referred to previous decisions where it was held that the Collector or Commissioner can issue directions to file an appeal, and even appeals filed by the Commissioner himself are maintainable under Section 35B(2). The Tribunal emphasized that the statutory provision should be interpreted to advance the true intention and purpose of the law.

Issue 2: Interpretation of Section 35E(2) in conjunction with Section 35E(4) of the Act:
The respondent argued that the Commissioner could only direct the adjudicating authority to appeal to the Commissioner (Appeals) under Section 35E(2) as it existed at the relevant time. Previous decisions were cited to support the argument that directions can be given only to the adjudicating authority and not to other officers. The Tribunal noted conflicting views among different High Courts on this issue, with some supporting the revenue's view and others upholding the Commissioner (Appeals)'s decision. Ultimately, the Tribunal followed the decisions of the Delhi and Bombay High Courts and dismissed the revenue's appeal.

Issue 3: Validity of directions given by the Commissioner to the Deputy Commissioner to file an appeal:
The Tribunal found that directions given to the Deputy Commissioner to file an appeal against an order passed by the Additional Commissioner were not correct, based on the decisions of the Delhi and Bombay High Courts. The appeal filed by the Deputy Commissioner was deemed not maintainable, and the Tribunal upheld the order of the Commissioner (Appeals) in this regard.

Issue 4: Conflict of views among different High Courts on the issue:
The Tribunal acknowledged the conflicting views among different High Courts on the issue of authorization to file an appeal under Section 35E(2) of the Act. While the Karnataka High Court supported the revenue's view, the decisions of the Delhi and Bombay High Courts aligned with the Commissioner (Appeals)'s stance. Given that the Bombay High Court was the jurisdictional High Court for the Bench, the Tribunal followed its decision and dismissed the revenue's appeal.

In conclusion, the Tribunal dismissed the revenue's appeal and upheld the order of the Commissioner (Appeals) based on the interpretation of Section 35E(2) of the Central Excise Act, 1944 and the conflicting views among different High Courts on the issue of authorization to file an appeal.

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