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TMI Blog2006 (6) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1944 against the order passed by the lower appellate authority. The relevant sub-section (2) of the said Section 35B of the Central Excise Act, 1944, before its amendment in the year 2005, read as under "The Commissioner of Central Excise may, if he is of opinion that an order passed by the Appellate Commissioner of Central Excise under Section 35, as it stood immediately before the appointed day, or the Commissioner (Appeals) under Section 35A, is not legal or proper, direct any Central Excise Officer authorized by him in this behalf (hereafter in this Chapter referred to as the authorized officer) to appeal on his behalf to the Appellate Tribunal against such order." The aforesaid provision makes it clear that the Commissioner has to form an opinion that an order passed by the Commissioner (Appeals) is not legal or proper before directing a Central Excise Officer authorized by him to appeal on his behalf to the appellate Tribunal against such order. In the instant case, we find that the Commissioner himself has filed the appeal. The respondents have not taken any objection to the Commissioner himself filing the appeal instead of authorizing another official to file the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (J)]. - I have perused the order recorded by the Hon'ble Member (Technical). I am not convinced with the order recorded by him. Provisions of sub-section (2) of Section 35B of the Central Excise Act, 1944 as is relevant for the purpose of the case is already reproduced in the order of the ld. M (T). A bare perusal of the provisions shows that the Commissioner has to record his opinion that the order passed by the appellate Commissioner is not legal or proper and on such opinion having been formed, he may direct any Central Excise Officer authorized by him on his behalf to appeal in the appellate Tribunal against such order. The section in no way authorizes the Commissioner himself to file an appeal. Thus, to hold that the Commissioner is competent to file the appeal himself will tantamount to rewrite the provisions which are not found in the said section and will also be extraneous to the provisions of law. The Apex Court has clearly laid down that if the law prescribes a thing to be done in a particular manner, it has to be done in that manner alone and it cannot be done in any other manner. Therefore, the view of ld. Member (Technical) that the Commissioner can file the appeal h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the legal position as explained in the order of Member (Technical) and Member (Judicial), the appeal of the Revenue is to be rejected on the preliminary objection raised by the Counsel for the respondent." (Pronounced in open Court on 14-3-2006) Sd/- Sd/- (Chittaranjan Satapath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpugned is not legal and proper and as such the opinion formed by the learned Commissioner, Central Excise need not specify in specific terms about illegality and impropriety in the impugned order. As a matter of fact, the Memorandum of Appeal deals with statements of facts involved in the case and grounds of appeal would show errors on fact findings and issue of law, on which appeal is to be decided. In whatever manner or fashion one may express on the grounds of appeal to point out infirmities in the impugned order, it does not tantamount to formation of an opinion within the meaning of Section 35B(2) of Central Excise Act, 1944. The sub-section makes it clear that formation of an opinion about the impugned order passed by the Commissioner (Appeals), Central Excise, is one act and filing of the appeal at the subsequent stage after formation of such an opinion is a different act. The subsequent act cannot rectify the infirmity of the first act as both the acts are being per formed by two different authorities at different stages. Therefore one cannot venture to cull out the meaning of the words not legal and proper from the grounds of appeal as it is completely outside of the scop ..... X X X X Extracts X X X X X X X X Extracts X X X X
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