2011 (2) TMI 1089 - AT - Central Excise

Adjudication - authorization to file the appeal - Held that - As the lower appellate authority has rightly observed that the adjudication order has been passed by the Dy. Commissioner and the Commissioner has authorised the Asst. Commissioner to file the appeal before the lower appellate authority. As held in MAZA COSMETICS case 2006 (8) TMI 65 - HIGH COURT , DELHI & Silver Streak Welding Products India Pvt. Ltd. 2007 (9) TMI 222 - HIGH COURT BOMBAY the Asst. Commissioner is not the officer of the rank of Dy. Commissioner who has passed the adjudication order hence, as per Section 35E (2) authorisation to file the appeal is not correct. Therefore, the appeal is not maintainable. The appeal filed by the Revenue is rejected.

Summary

Issues:
1. Competency to file appeal under Section 35E(2) of C.Ex. Act by an authority other than the officer issuing the adjudication order.

Analysis:
The judgment revolves around the issue of the competency to file an appeal under Section 35E(2) of the Central Excise Act by an authority other than the officer issuing the adjudication order. The Revenue appealed against the findings of the lower appellate authority, which dismissed the appeal filed by the Revenue. The lower appellate authority held that the appeal by the department under Section 35E(2) can only be filed by an authority in the rank of the officer issuing the adjudication order. The Revenue argued citing precedents that Section 35E(4) covers both sub-sections (1) and (2), allowing 'the adjudication authority or the authorised officer' to file an appeal. However, the respondent's advocate referred to judgments by the High Courts of Delhi and Bombay, emphasizing that directions can only be given to the adjudicating authority and not any other officer.

The Tribunal, after considering the arguments from both sides and examining the records, upheld the findings of the lower appellate authority. It was observed that the adjudication order was passed by the Deputy Commissioner, who then authorized the Assistant Commissioner to file the appeal. The Tribunal concurred with the High Court decisions cited by the respondent's advocate, stating that the Assistant Commissioner is not of the same rank as the Deputy Commissioner who passed the adjudication order. Therefore, as per Section 35E(2), the authorization to file the appeal by the Assistant Commissioner was deemed incorrect. The Tribunal emphasized judicial discipline, stating that they are bound by the decisions of the High Courts, particularly the Bombay High Court's view that an appeal filed by an officer other than the adjudicating authority is not maintainable. Consequently, the appeal filed by the Revenue was rejected, affirming the lower appellate authority's decision.