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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 ..... ferred to as the Act), referred to Larger Bench for resolving the following questions 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 same can be given to any other authority. " 2. Ld. A.R. for Revenue would submit that the provisions of Section 35E(2) of the Act are very clear. He would submit that filing of appeal under Section 35E to the first appellate authority is substantive right conferred by the statute and it should not be abrogated by the procedural aspect of the manner of presenting /filing of appeal. He would submit that language used in Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 286 (Tri-Chennai). He would refer to the Larger Bench decision of this Tribunal in the case of C.C.E., Indore vs. Lloyd Insulatin (India) Ltd. 2007 (216) ELT 201 (Tri-LB) for the proposition that it is elementary rule of justice that no party should suffer for the mistake of the Court or its office and also that the substantive right of appeal should not be taken away due to procedural aspect. He would rely on the decision in C.C.E., Bangalore II vs. ITC Limited - 2008 (221) ELT 331 (Kar.) , of the Gujarat High Court in C.C.E. & Cus, Surat-I vs. Shree Ganesh Dyeing & Ptng. Works - 2008 (232) ELT 775 (Guj.) and of the Bombay High Court in C.C. & C.E., vs. Supreme Industries Ltd., -2008 (226) ELT 338 (Bom.) for the proposition that by direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of Central Excise may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct such authority to apply to the Commissioner (Appeals) for the determination of such points arising out of the decision or order as may be specified Central Excise in his order. 6. The above said provisions clearly indicate that for filing an appeal against the order passed by the adjudicating authority subordinate to Commissioner, he shall call for and examine the record of any proceeding; the Commissioner can direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner (Appeals) and since he has done so on the basis of a direction given by the Commissioner, the authorities below erred in coming to the conclusion that the appeal was not competent. We are not in agreement with the learned Counsel for the Revenue since we are of the opinion that the provisions of Section 35E(2) and Section 35E(4) of the Act cater to two different stages or steps in the process. In terms of Section 35E(2) of the Act, the Commissioner can only give a direction to the adjudicating authority to file an appeal. After such a direction is given, then the provisions of Section 35E(4) of the Act will apply and the appeal may then be filed by the adjudicating authority or by any other authorised officer. That authorised o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an direct any officer to file appeal before Commissioner (Appeals). The ratio of decision of the Hon'ble 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. We also find strong force in the contention raised by the Id. Consultant that Paragraph 6 of the decision of the Apex Court in the case of MM. Rubber Co. (supra) also supports the view taken by the Hon'ble High Courts of Bombay and Delhi. 10. Reference made by the Id. A.R. on the decisions of various cases of the Tribunal to argue that the provisions of Section 35E(2) if held holistically will not carry their case any further, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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