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TMI Blog2008 (8) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... issal dated 14-5-07, on a Writ Petition filed by the Commissioner of Central Excise, Siliguri, the Hon ble Calcutta High Court has passed an Order dated 29-11-07 holding that there is no reason to interfere with the Order passed by the Tribunal on 14-5-07. It has, however, been held that dismissal will not stand in the way if the petitioner can file and produce such records which can satisfy the Tribunal to take up the matter; then the Tribunal shall be at liberty to consider the case of the petitioner. 4. Subsequent to the Hon ble High Court s Order dated 29-11-07, the present M.A.(ROA) and M.A.(COD) have been filed. 5. Shri S.B. Shinde, learned J.D.R. appearing for the Department states that the authorisation to file the Appeal in this case has been given by Ms. Meenakshi Passi, the then Commissioneer, Central Excise, Siliguri Commissionerate. He, further, states that the said Commissioner has given authorisation on behalf of the Committee which has given its opinion to file Appeal as reflected in the Note Sheet at Annexure-D to the MA (ROA). The learned J.D.R., Shri Shinde argues that since the authorisation has been given on behalf of the Committee, the same should be consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Commissioner of Central Excise, Siliguri v. Mall Eximp (P) Ltd., vide Misc. Order No. M-183-185/KOL/08 dated 30-6-2008 [reported in 2008 (227) E.L.T. 619]. 7. After hearing both sides and perusal of records, we find that the authorisation annexed as Annexure-E to the MA (ROM) reads as under : Authorisation under Section 35B(2) of the Central Excise Act, 1944 I have carefully examined the Order-in-Appeal No. 57-A/SLG/2006 dated :26-10-2006 passed by the Commissioner, Appeal-IV, Central Excise, Kolkata in the case of M/s. Hindustan Coco Cola Beverages Pvt. Ltd., Raninagar, Dist. Jalpaiguri and I am of the opinion that the said Order-in-Appeal is not legal and proper. Hence in exercise of the powers conferred upon me under Section 35B(2) of the Central Excise Act, 1944, I direct the Deputy Commissioner (A R), Central Excise, Siliguri Commissionerate to file an Appeal on my behalf before the Cestat, EZB, Kolkata against the aforesaid Order-in-Appeal within the stipulated time period. Sd/- (Meenakshi Passi) Commissioner Central Excise, Siliguri Commissionerate, Siliguri From the above, it is very clear that the authorisation is given by only one Commissioner and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ray, the learned J.D.R. Shri Y.S. Loni and Shri V.N. Thette, learned Additional Commissioner from the Chief Commissioner s Office. We have also heard Shri N.K. Chowdhury, learned Advocate for the Respondents. As the issue is of some importance, we have also heard learned Senior Advocate Shri R.N. Das and learned Advocate Dr. Samir Chakraborty, who have acted as Amicus Curiae at our request. 9. Shri Das, learned Senior Advocate points out that the term, Central Excise Officer has been defined in Section 2(b) of the Central Excise Act, 1944 to mean Chief Commissioner of Central Excise, Commissioner of Central Excise etc. and any other Officer invested by the Board with any of the powers of a Central Excise Officer under the Act. We note that Section 33 of the Act specifies the powers of adjudication of the Commissioner of Central Excise and other Officers; Section 37 empowers the Central Government to make rules under the Act; and Section 37A empowers the Central Government to delegate powers of the Board to a Chief Commissioner among others, by notification in the Official Gazette. 10. We note that Rule 3 of the Central Excise Rules, 2002 made under the Act empowers the Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, Siliguri. 12. The proviso to the above-cited Notification No. 14/2002-C.E. (N.T.) reads as under :- Provided that a Chief Commissioner of Central Excise may, within his jurisdiction, specify, the jurisdiction of a Commissioner of Central Excise (Appeals) and jurisdiction of such Commissioner of Central Excise (Appeals) shall be limited to the jurisdiction so specified. This proviso appears to suffer from excessive delegation in the absence of a notification issued under Section 37A authorising the Board to delegate its powers. In any case, it does not permit a Chief Commissioner to alter jurisdiction of a jurisdictional Commissioner or to appoint him to an additional jurisdiction as its scope is limited to the jurisdiction of Commissioner (Appeals). 13. We find that the Board has assigned all India jurisdiction to all Commissioners under Notification No. 39/2001-C.E. (N.T.), dated 26-6-01 but only for the purpose of adjudication and investigation of cases to be assigned by the Board. The Notification No. 11/2007-C.E. (N.T.) dated 1-3-2007 issued under Section 37A and cited by the learned J.C.D.R. has to be interpreted in the context of Notification No. 39/2001-C.E. (N. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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