2011 (8) TMI 811 - AT - Central Excise

Maintainability of Appeals - Held That - Authorization to seek review given by the Commissioner to Deputy Commissioner and not the adjudicating authority (Additional Commissioner), the appeal is not maintainable under Section 35E(2) of the Central Excise Act, (Silver Streak Welding Products India P. Ltd. - Bombay High Court - 2007 -TMI - 4580 - HIGH COURT BOMBAY )

Summary

Issues:
- Authorization to file appeal by Commissioner to Dy. Commissioner when Order-in-Original passed by Additional Commissioner.

Analysis:
The appeal before the Appellate Tribunal CESTAT, Mumbai was filed by the revenue against the Order-in-Appeal issued by the Commissioner (Appeals) rejecting their appeal. The case revolved around a show-cause notice demanding duty, where the Additional Commissioner confirmed a duty amount but dropped a significant portion of the demand. The Commissioner reviewed the Order-in-Original and authorized the Dy. Commissioner to file an appeal, which was contested by the revenue. The main issue was whether the Commissioner could authorize the Dy. Commissioner to file an appeal when the Order-in-Original was passed by the Additional Commissioner.

The Tribunal referred to a previous case to settle the issue, stating that the appeal under Section 35E(2) of the Central Excise Act was not maintainable before the Commissioner (Appeals) if the authorization was given to the Dy. Commissioner and not the adjudicating authority, in this case, the Additional Commissioner. Citing the decision of the Bombay High Court, the Tribunal upheld that the authorization must be given by the Commissioner to the adjudicating authority for the appeal to be maintainable. Since the authorization in this case was not given to the Additional Commissioner who passed the Order-in-Original, but to the Dy. Commissioner, the Tribunal found no infirmity in the impugned order and dismissed the revenue's appeal.

In conclusion, the Tribunal upheld the decision of the Commissioner (Appeals) to reject the revenue's appeal based on the lack of proper authorization for filing the appeal. The case serves as a reminder that authorization for appeal must be given by the appropriate authority as per the provisions of the Central Excise Act to ensure the maintainability of the appeal before the appellate authorities.