9911796707
TMI Blog2000 (4) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... and the penalty imposed on them was also set aside. In such types of orders where the department is aggrieved, the Commis sioner may authorise under Section 35B(2) any Central Excise officer, if the order passed by the Commissioner (Appeals) is not legal and proper, to appeal on his behalf to the appel late Tribunal. In the authorisation dated 19-11-1999 it has been mentioned as follows : Whereas in exercise of the powers vested in me under Section 35E(2) of the Central Excise Act, 1944, I have called for the records of the proceed ings in respect of M/s. Atul Ltd., P.O. Atul, Dist. Valsad, in which the Commissioner (Appeals), Customs Central Excise, Surat, has passed the Order-in-Appeal No. SSS/SRT/1406/99 dated 19-8-1999. And where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court in Rohit Pulp Paper Mills should be seen. 3. I have considered the rival submissions. Normally, whenever an authority passed an order wrong mentioning of rule should not deny the authority to exercise the power enshrined under the Act. Here the judgment of the Supreme Court in Rohit Pulp Paper Mills may proceed on the basis that the provisions of section 35B should be treated as a mandatory way. The authorisation extracted above shows that section 35E(2) deals with an appeal before the Commissioner (Appeals). The power of the Commissioner is to authorise officers subordinate to him to file appeal before the Commissioner (Appeals) against an order passed by the adjudicating authority. The provisions of section 35B(2) enables the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ely one is filing of appeal before the Commissioner (Appeals) and the other is filing of appeal before the Tribunal. I am therefore constrained to hold, in view of the circumstances of this case as well as the decision of the Supreme Court in Rohit Pulp Paper Mills that the provision of section 35B(2) is a mandatory one. Hence I dismiss the stay petition as well as the appeal. The appeal is not disposed of on merits. 4. One more point needs to be commented. The appeal before the Tribunal against the order pleaded on behalf of the department by the Commissioner is that an appeal is filed by the Commissioner before an superior authority. He cannot allow his Commissionerate to send attested copy of the authorisation. It is salutary if the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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