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2016 (6) TMI 514 - AT - Central ExciseMaintainability - Demand of duty - Directions were given by Commissioner to Dy. Commissioner to challenge the same by way of filing of an appeal before the commissioner (Appeals) - Whether the Commissioner is required to direct Such Authority to apply to Commissioner (Appeals) for determination of such points arising out of the decision - Section 35 E (2)of Central Excise Act 1944 - Held that - it is found that there are conflicting judgments of the Tribunal on the said issue. Whereas in some of the decisions of the Tribunal it has been held that Section 35 E (2) cannot be interpreted to mean that such directions are required to be given only to the adjudicating Authority or any other officer higher in rank than the Adjudicating Authority. On the other hand there are Tribunal s decisions laying down that if the directions are not given to the Adjudicating Authority the provisions of Section 35 E (2) of Central Excise Act 1944 stands violated thus making the appeal filed by any other authority as not maintainable. As there are two decisions of the Tribunal interpreted and the applicability of the Supreme Court s decision in the case of CCE Vs. M.M. Rubber Co. 1991 (9) TMI 71 - SUPREME COURT OF INDIA is different. Therefore matter needs to be resolved by the larger Bench. For the said purpose we place papers before the Hon ble President for constitution of a Larger Bench to resolve the following question of law - Whether in terms of the provisions of Section 35 E (2) of the Central Excise Act 1944 directions to file the appeal are required to be given by the Commissioner only to the very same Authority who adjudicated the case or the same can be given to any other Authority.
Issues:
1. Interpretation of Section 35 E (2) of the Central Excise Act, 1944 regarding the authority to file an appeal. 2. Maintainability of the appeal filed by the Dy. Commissioner before the Commissioner (Appeals). 3. Conflicting judgments of the Tribunal on the issue. Analysis: Issue 1: Interpretation of Section 35 E (2) The case involved a dispute over the interpretation of Section 35 E (2) of the Central Excise Act, 1944, specifically regarding the authority empowered to file an appeal. The Commissioner (Appeals) rejected the appeal filed by the Revenue, stating that the directions to file an appeal should be given to the adjudicating authority, i.e., the Addl. Commissioner who adjudicated the case. The conflicting judgments of the Tribunal highlighted differing views on this issue, with some holding that such directions could be given to any officer higher in rank than the adjudicating authority. Issue 2: Maintainability of the appeal The Commissioner (Appeals) found the appeal filed by the Dy. Commissioner to be non-maintainable as per Section 35 E (2) since the directions to file an appeal should have been given to the Addl. Commissioner who originally adjudicated the case. This raised the question of whether the appeal filed by an authority other than the adjudicating authority was valid under the provisions of the Central Excise Act, 1944. Issue 3: Conflicting Tribunal judgments The Tribunal noted conflicting judgments on the issue, with some decisions emphasizing that directions to file an appeal should be given only to the adjudicating authority, while others suggested flexibility in assigning this responsibility to any higher-ranking officer. The arguments presented by both the Revenue and the respondent relied on previous Tribunal decisions to support their respective positions, adding complexity to the interpretation of the statutory provisions. In conclusion, the case highlighted the need for a larger Bench to resolve the question of law regarding the interpretation of Section 35 E (2) of the Central Excise Act, 1944. The conflicting Tribunal judgments and the differing views on the authority empowered to file an appeal underscored the complexity of the legal issue at hand. The decision to refer the matter to a Larger Bench aimed to provide clarity and consistency in interpreting the statutory provisions, particularly concerning the directions for filing appeals in excise matters.
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