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TMI Blog2008 (10) TMI 483X X X X Extracts X X X X X X X X Extracts X X X X ..... Dy. Commissioner, who is not of the same level as Additional Commissioner and therefore such authorization under Section 35E(2) of the Central Excise Act, 1944 is improper as under this section only an adjudicating authority can be authorized to file an appeal. 2. The revenue in its appeal has contended that Section 35E(2) of the Central Excise Act, 1944 authorizes the Commissioner to direct the adjudicating authority to file an appeal with the Commissioner (Appeals). However, Section 35E(4) of the Central Excise Act, 1944 indicates that an application to the Commissioner (Appeals) may be made by the adjudicating authority or an authorized officer. Section 35E(2) of the Central Excise Act, 1944 requires a broad interpretation, reading ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the decision of Karnataka High Court in the case of ITC Limited - 2008 (221) E.L.T. 331 (Kar.), wherein Committee of Commissioners have filed an appeal instead of the appeal being filed through authorized officer as required under Section 35B(2) of the Central Excise Act, 1944 and the Hon'ble court held that such a defect was curable defect and was not fatal to the revenue. 3. Ld. advocate for the respondents submitted that in terms of Section 35E(2) of the Central Excise Act, 1944, as it existed at the relevant time i.e. February, 2003, the Commissioner of Central Excise could direct only the adjudicating authority to appeal to the Commissioner (Appeals) for the determination of the points arising out of the order passed by the ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al rightly dismissed. In view of this it was submitted that the Commissioner (Appeals) order should be upheld and the revenue's appeal should be rejected. 4. We have considered the submissions. We find that there are conflicting views on this issue, even among the High Courts. However, as against the Karnataka High Court views in favour of the revenue, we find that the decision of the Delhi High Court and the Bombay High Court supports the view taken by the Commissioner (Appeals) that once an order has been passed by an Additional Commissioner, directions given to Dy. Commissioner for filing an appeal are not correct and appeal filed by Dy. Commissioner against the order of the Additional Commissioner is not maintainable. Since the Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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