2004 (12) TMI 164 - AT - Central Excise

Summary

Issues Involved:
1. Authority to file an appeal under Section 35E(2) of the Central Excise Act.
2. Interpretation of sub-sections (2) and (4) of Section 35E.
3. Applicability of previous judicial decisions.

Issue-wise Detailed Analysis:

1. Authority to File an Appeal under Section 35E(2) of the Central Excise Act:
The primary issue in this case is determining who the Commissioner, Central Excise, can authorize to file an appeal after reviewing an adjudication order under Section 35E(2) of the Central Excise Act. The Commissioner had directed the Deputy Commissioner to file an appeal against an Order-in-Original passed by the Additional Commissioner. The Commissioner (Appeals) dismissed the appeal, deeming it not maintainable as it was not filed by the Additional Commissioner who passed the original order. This decision was based on the interpretation that only the adjudicating authority could be authorized to file the appeal.

2. Interpretation of Sub-sections (2) and (4) of Section 35E:
The learned Senior Departmental Representative argued for a harmonious interpretation of sub-sections (2) and (4) of Section 35E. Sub-section (2) allows the Commissioner to direct "such Authority" to apply to the Commissioner (Appeals), while sub-section (4) uses the term "the adjudicating Authority or the authorized officer." The argument posited that sub-section (4) indicates that an authorized officer, in addition to the adjudicating authority, can file the application. This interpretation was supported by various Tribunal decisions, such as *Mirah Exports (P) Ltd.* and *Sun Export Corp.*, which emphasized a broad reading of the provisions to avoid anomalies and ensure the intent of the statute is fulfilled.

3. Applicability of Previous Judicial Decisions:
The Tribunal considered several previous decisions to support the harmonious interpretation. In *Mirah Exports (P) Ltd.*, the Tribunal held that the directive could be given to any authorized officer, not just the adjudicating authority. Similarly, in *Falcon Tyres Ltd.*, it was held that the Commissioner could direct either the adjudicating officer or any other officer for relevant reasons. The Tribunal noted that the decision in *Dhampur Sugar Mills* did not consider sub-section (4) of Section 35E and thus was not applicable. The decision in *Llyods Metals* by a Single Member Bench was also distinguished. The Tribunal emphasized that a literal interpretation of sub-section (2) would create inconsistencies and defeat the purpose of Section 35E, which aims to provide the Department an opportunity to examine and challenge subordinate officers' decisions.

Conclusion:
The Tribunal concluded that the Commissioner of Central Excise could issue directions to either the adjudicating authority or any other authorized officer to file an application to the Commissioner (Appeals). The appeal filed by the Revenue was allowed, and the matter was remanded to the Commissioner (Appeals) for a decision on the merits. This interpretation ensures that the provisions of Section 35E are applied harmoniously and effectively, maintaining the statute's intent and avoiding any anomalous results.