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TMI Blog2016 (9) TMI 423X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court, which is directly on the point is applicable on all fours and needs to be followed as no contrary decision of any High Court on the provision of Section 35E(2) was brought to our notice. The very same question as is posed to Larger Bench was considered by the Hon'ble High Court of Bombay in the case of Silver Streak Welding Products India Pvt. Ltd. [2007 (9) TMI 222 - HIGH COURT BOMBAY]. Also the decision of the Apex Court in the case of MM. Rubber Co. [1991 (9) TMI 71 - SUPREME COURT OF INDIA] supports the view taken by the Hon'ble High Courts of Bombay and Delhi. Therefore, by following the decision of the Hon'ble High Court of Bombay and Delhi, we hold that the directions to file appeal are required to be given by the Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is to examine of this Section with Section 35E(4) of the Act. It is his submission that under Section 35E(2) Commissioner is empowered to direct such authority to apply to Commissioner (Appeals) for review of the order passed by the adjudicating authority lower in rank to the Commissioner. It is his further submission that the Commissioner has found the order passed by the subordinate authority is illegal and improper and hence there is a direction to file appeal. He would refer to the decision of the Tribunal in C.C.E., Bangalore vs. Falcon Tyres Ltd. - 1997 (91) ELT 649 (Tribunal) for proposition that there should be harmonious construction in reading the provisions of sub-section (2) and subsection (4) of Section 35E and harmonious r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he lis between the party but is only approaching higher fora to decide the lis as also for the proposition that once the appeal is filed, the appellate authority has to decide the case on merits and should not dispose the appeal summarily. He would also refer to the decision of Larger Bench of the Hon'ble Delhi High Court in C.S.T. vs. Japan Airlines International Co. Ltd. - 2015 (39) STR 541 (Del.) for the proposition that once the decision is taken or shown to have been taken, the appellate authority shall entertain the appeal and adjudicate upon the same on merits, in accordance with law. 3. Shri Ravinder Singh, Id. Consultant appearing for the respondent/assessee would submit that the points raised by the department are now cove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. The very same question as is posed to Larger Bench was considered by the Hon'ble High Court of Bombay in the case of Silver Streak Welding Products India Pvt. Ltd. (supra); wherein Lordships held as under: The Appeal was dismissed by the learned Tribunal relying on the judgment in the case of CCE, Surat-I v. Shri Pradeep Kr. Shyam Sukha dated 29th November, 2005 [2006 (202) E.L.T. 605 (Tri. -LB)]. In the instant case the Commissioner authorized the Deputy Commissioner, Central Excise, Nasik-ll to seek review. The Adjudicating Authority was Additional Commissioner. This Court in Central Excise Appeal No. 3 of 2004 and other connected Appeals decided on April 23, 2007 construing the language of Section 35E(2) as it then stood ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised by the adjudicating authority after a direction given to the adjudicating authority. What has happened in the present case is that the Commissioner did not issue any direction to the adjudicating authority under Section 35E(2) of the Act; he directly authorised the Deputy Commissioner to file an appeal before the Commissioner (Appeals) and thereby completely by-passed the adjudicating authority. 4. In other words, the Commissioner straightway resorted to the second stage or took the second step without passing any order in the first stage, namely, a direction to the adjudicating authority to file an appeal. In this view of the matter, the action of the Commissioner in by-passing Section 35E(2) of the Act and straightway resorting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that Commissioner can direct the adjudicating authority to file review/ appeal by the High Courts prevail over Tribunal's decision. As regards the decisions relied upon by the Id. A.R. in the case of ITC Ltd., Shri Ganesh Dyeing Ptng.Work and Supreme Industries Ltd. in Japan Airlines International Co. Ltd., we find that each of these judgments was considering the provision of Section 35- B of the Act and not provisions of Section 35E(2). Hence the ratio laid in these case law may not help to come to a conclusion in the case in hand. 11. Accordingly, respectfully following the decision of the Hon'ble High Court of Bombay and Delhi we hold that directions to file appeal are required to be given by the Commissioner only to the v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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