2005 (11) TMI 105 - AT - Central Excise

Summary

Issues:
Interpretation of Section 35E(1) of the Central Excise Act regarding the authority empowered to file an appeal before the Appellate Tribunal under the direction of the Board.

Analysis:
1. The case involves the interpretation of Section 35E(1) of the Central Excise Act, which empowers the Board to direct a Commissioner to apply to the Appellate Tribunal for the determination of specified points arising from a decision or order. The provision does not authorize the Commissioner to delegate this function to another Central Excise Officer. This interpretation was supported by a previous case law concerning a similar provision under Section 35G. The Tribunal held that only the Commissioner himself, and not a subordinate officer, can be directed to file an appeal under Section 35E(1).

2. The Tribunal further clarified the interpretation of Section 35E(1) by examining the case law of Baron International Limited v. Commissioner of Customs & Central Excise, Vadodara. The Tribunal rejected the argument that the direction under Section 35E(1) should be given to the same person who passed the order, stating that the term "such Commissioner" can include a successor Commissioner as well. This decision emphasized that Section 35E(1) refers to a single level of officer, i.e., the Commissioner, unlike Section 35E(2) which covers various levels of officers subordinate to the Commissioner.

3. The case of Commissioner of Central Excise v. Hari Vishnu Packing was cited to contrast the interpretation of Section 35E(2) where an appeal was filed by a Deputy Commissioner authorized by the Commissioner. The Tribunal highlighted that previous decisions had allowed appeals to be filed by officers of lower levels than the Commissioner, as long as they were authorized. The Tribunal reconciled the apparent conflict between the language of subsections (2) and (4) of Section 35E by emphasizing that the level of the officer remains the same when interpreting the provisions.

4. The Tribunal concluded that the Commissioner, directed by the Board under Section 35E(1), cannot delegate the filing of an appeal to a Superintendent (Appeals) or any other officer. Filing an appeal is deemed a substantive function that cannot be further delegated. Therefore, an appeal filed by a Superintendent (Appeals) under such circumstances would not be maintainable according to the provisions of the Central Excise Act.

5. In light of the above analysis, the Tribunal answered the reference by affirming that only the Commissioner, as directed by the Central Board of Excise & Customs, can file an appeal under Section 35E(1) read with Section 35E(4). Any delegation of this function to a lower-level officer renders the appeal not maintainable. The file was returned to the referring Bench for further orders.