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TMI Blog2016 (6) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... e duty to the extent of Rs. 52,241/- and also imposed penalty of Rs. 10,000/- However, he dropped the duty demand to the extent of Rs. 14,50,036/- 2. The said order was reviewed by the Commissioner in terms of the provisions of Section 35 E (2) of the Central Excise Act, 1944, who directed the Dy. Commissioner to challenge the same by way of filing of an appeal before the commissioner (Appeals). Accordingly, in terms of the provisions of Section 35 E(4), the appeal was filed by the Dy. Commissioner before the Commissioner (Appeals). 3. The Commissioner (Appeals) rejected the appeal filed by the Revenue on the ground that the same was not maintainable inasmuch as the same was required to be filed by the Addl. Commissioner only, who a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of Section 35 E (2) of Central Excise Act, 1944 stands violated, thus making the appeal filed by any other authority as not maintainable. 5. Ld. DR in support of his plea in favour of the Revenue has drawn our attention to the Tribunal's decision in the case of Commissioner of Central Excise, Indore Vs. Shri Ram Switch Gears (P) Ltd. - 2005 (192) ELT 532 (Tribunal-Delhi) as also to another decision of the Tribunal in the case of Commissioner of Central Excise Vs. Nagachandra Cements (P) Ltd. - 2007 (218) ELT 402 (Tribunal-Bang)He has also drawn out attention to another decision of the Tribunal in the case of Commissioner of Central excise Vs. Blue Star Spinning Mills Ltd. - 2005 (182) ELT 125 (Tribunal), in support of his plea that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s held that Section 35 E is a power of Superintendence conferred on a superior Authority to ensure that the subordinate officers exercise their powers under the Act correctly and properly and where a time is limited for the purpose by the statute, such power should be exercised within the specified period from the date of the order sought to be reconsidered." 8. On the other hand, Tribunal in the case of Metro Steel Rolling Mills - 2005 (66) RLT 324 (CESTAT-Mum.) referred to the same decision of the Hon'ble Supreme Court in the case of M.M. Rubber Co. - 1991 (55) ELT 289 (SC) and held in favour of the assesse by observing as under : - "We derive support for this view from the Apex Court decision in CCE Vs. M. Rubber Co. (supra) relied o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decisions relied by Dr, Since they were arrived at without the benefit of the decision in M. Rubber co." 9. As in seen from the above two decisions of the Tribunal, interpreted and the applicability of the Supreme Court's decision in the case of M.M. Rubber Co. (supra) is different. As such, we are of the view that the matter needs to be resolved by the larger Bench. For the said purpose, we place papers before the Hon'ble President for constitution of a Larger Bench to resolve the following question of law : - "Whether in terms of the provisions of Section 35 E (2) of the Central Excise Act, 1944, directions to file the appeal are required to be given by the Commissioner only to the very same Authority, who adjudicated the case or the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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