2007 (9) TMI 282 - HC - Central Excise

Summary

Issues involved: Appeal by Revenue against dismissal order, authority to file appeal, interpretation of Section 35E(2), maintainability of appeal filed by Additional Commissioner.

Summary:
The High Court of Judicature at Bombay heard an Appeal by the Revenue against the dismissal order dated 5th April, 2005. The Appeal was based on the decision in the case of CCE, Mumbai-III v. M/s. Metro Street Rolling Mills & Ors. The Adjudicating Authority was the Additional Commissioner who directed the Additional Commissioner, Central Excise to apply to the Commissioner (Appeals). However, the Appeal was signed by the Assistant Commissioner, Central Excise, Khopoli, not the Applicant before the Commissioner of Central Excise (Appeals).

The Court noted that under Section 35E(2), directions can only be issued to the Adjudicating Authority. The Tribunal, in the impugned order, held that the Appeal filed by the Additional Commissioner before the Commissioner (Appeals) was not maintainable. The Court disagreed with this view, stating that the key issue was whether the Appeal was filed by a competent person authorized by the Commissioner, and whether any illegality or irregularity was present in the filing.

Consequently, the Court set aside the impugned order and remanded the matter back to the Tribunal for reconsideration. It was emphasized that if the Tribunal decides against the Respondent, they should be given an opportunity to be heard on the merits of the Appeal.