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TMI Blog2014 (9) TMI 409X X X X Extracts X X X X X X X X Extracts X X X X ..... smissing the appeal preferred by the Commissioner of Central Excise, Delhi-1 on account of non-compliance of Section 35B of the Central Excise Act, 1944 as the committee did not consist of two Chief Commissioners of Central Excise?" 2. An appeal against an order passed by Commissioner (Appeals) is maintainable before Customs, Excise and Service Tax Appellate Tribunal (Tribunal, for short). Section 35B of the Central Excise Act, 1944 (Act, for short) authorises and empowers the Revenue to challenge the order in original passed by the Commissioner or an order passed in appeal by the Commissioner (Appeals) before the Tribunal. However, to control and regulate the exercise of the said right of the Revenue, sub-sections (1B) and (2) of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llate Tribunal against such order. Explanation- For the purposes of this sub section, "Jurisdiction Chief Commissioner" means the Chief Commissioner of Central Excise having jurisdiction over the adjudicating authority in the matter." 3. Sub-section (1B) postulates and requires the Central Board of Excise and Customs to by way of notification in the official gazette constitute committees. The Committee can consist of two Chief Commissioners of Central Excise or two Commissioners of Central Excise, as the case may be. It is only upon approval granted by the Committee that an appeal can be preferred by the Revenue before the Tribunal. Sub-section (2) also deals with the situation where there is a difference of opinion between the two member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioners and the appeal stands filed by Commissioner himself. As such, we are of the view that the same being contrary to the legal position, is not maintainable. Accordingly all the appeals of(sic) filed by the revenue are dismissed on the above short point." 5. The contention of the Revenue is that in the present case the appeal was preferred after approval of the Committee consisting of two Commissioners and not two Chief Commissioners. It is submitted that the Committee of chief Commissioners was not required to examine the question whether an appeal should be preferred before the Tribunal against the order passed by Commissioner (Appeals) as the original adjudication order was passed by the Additional Commissioner and not by the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deals with jurisdiction of the Committee of Chief Commissioners, when the original adjudication order is passed by the Commissioner. The aforesaid legal position is apparent on reading of Section 35E of the Act, which for the sake of convenience is reproduced below:- "35E. Powers of Committee of Chief Commissioners of Central Excise or Commissioner of Central Excise to pass certain orders.- (1) The Committee of Chief Commissioners of Central Excise may, of its own motion, call for and examine the record of any proceeding 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 or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner of Central Excise in his order." 8. Section 35E of the Act deals with specific powers of Chief Commissioner and Commissioners. Sub-section (2) authorises the Commissioners to on their own motion, challenge the order passed by the adjudicating authority subordinate to them before the Commissioner (Appeals). Sub-section (1) to Section 35E of the Act provides, when the Committee of Chief Commissioners can call for and examine records on legality or propriety of any decision or order of the Commissioner and apply to the Tribunal for determination on specified points. The said power is exercised by the Committee of Chief Commissioners only when the order or decision is that of the Commissioner. It does not apply when the order or decision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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