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TMI Blog2006 (7) TMI 467X X X X Extracts X X X X X X X X Extracts X X X X ..... ce was adjudicated by the Addl. Commissioner who held these items as eligible items of capital goods entitled to Modvat credit and accordingly allowed the Modvat credit. 2. In pursuance of the powers conferred under Section 35E(2) of the Central Excise Act, the Commissioner of Central Excise, called for and examined the said order-in-original and authorised and directed the Asstt. Commissioner, Central Excise, Nagpur to file an appeal before the Commissioner (Appeals) with the prayer for setting aside the said order-in-original. 3. The Commissioner Central Excise however, held that the appeal filed by the department is not maintainable on the ground that the Commissioner, Central Excise had directed the Asst. Commissioner who was not ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the contents of sub-section (4) of the Section 35E(2) which reads as under : Where in pursuance of an order under sub-section (1) or sub-section (2) the adjudicating authority or the authorised officer makes an application to the appellate Tribunal or the Commissioner (Appeals) to such application . The mention of the authorised officer in addition to the adjudicating authority in the said sub-section was necessitated because of the possibility of the Commissioner authorising an officer subordinate to him other than the adjudicating officer for filing an appeal under Section 35(E)(2) of the Central Excise Act. It was submitted that the tribunal in its recent decision in the case of Commissioner C.E. v. Blue Star Spinning Mills Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions under Section 35E(2) and Section 35E(4) submits that the Section 35E(4) provides for making an application by adjudicating authority or authorised officer to the appellate tribunal or the Commissioner (Appeals) within the period of 3 months from the date of intimation of the order under sub-section (1) or sub-Section (2) to the adjudicating authority. 6. Both the Section 35E(2) and 35E(4) contemplates that the direction to file an appeal can be issued only to the adjudicating authority. It was submitted that the Supreme Court has in the case of C.C.E. v. M.M. Rubber held under unequivocal terms that the directions to file an appeal under the terms of Section 35E(2) can be given to the adjudicating authority. The relevant find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . v. Usha Conductors (P) Ltd. inasmuch as the decision in the case of Blue Star Spinning Mills Ltd. overlooks the facts that Section 35E(2) specifically provides that the directions to file an appeal can only be to an adjudicating authority. It also overlooks the fact that in terms of Section 35E(4) the application to be filed before appellate Tribunal or the Commissioner (Appeals) is to be within 3 months from the date of receipt of order under Section 35E(1) or Section 35E(2) to the adjudicating authority. The decision in the case of Blue Star Spinning Mills Ltd. and the decision of the tribunal in the case of Mirah Exports (P) Ltd. v. C.C. wherein the facts of that case the Board had directed the Collector of Customs to file an appeal be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Commissioner (Appeals) order is correct in law and should not be interfered with. 11. We have considered the submission. For better understanding the relevant extract of Section 35E(1), (2) and (4) are reproduced below : Section 35E. Powers of Board or (Commissioner of Central Excise) to pass certain orders. - (1) The Board may of its own motion, call for and examine the record of any proceedings in which a Commissioner of Central Excise as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such Commissioner to apply to the Appellate Tribunal for the determination of such points arising ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise to review orders of the adjudicating authority. According to Section 35E(1) the Board may direct the Commissioner who passed the adjudication order or any other Commissioner to apply to the Appellate Tribunal for determination of such points arising out of the adjudication order. Originally the words any other Commissioner was not there in the Section. In fact the above words were inserted by an amendment in the Finance Act, 2001. However, Section 35E(2) confers powers on the Commissioner of Central Excise to review the order of any officer subordinate to him. In Section 35E(2) the Commissioner may direct such authority to apply to the Commissioner (Appeals) for determination of such points arising out of the decision of the adjudica ..... X X X X Extracts X X X X X X X X Extracts X X X X
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