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TMI Blog2016 (10) TMI 744X X X X Extracts X X X X X X X X Extracts X X X X ..... ority and if he was not satisfied, to direct the said authority to file an appeal before the Commissioner (Appeals). Held that: - The impugned order of the Assistant Commissioner, in the present proceedings, was passed on 26.05.2009 and the order in review by the Commissioner directing the Assistant Commissioner to file an appeal was passed on 14.8.2009 i.e. before 19.08.2009. As such, it can be safely held that, during the relevant period, there were no powers or jurisdiction with the Commissioner to direct the Assistant Commissioner to challenge the order passed by him before the Commissioner (Appeals). As such, the appeal filed by the Assistant Commissioner before the Commissioner (Appeals) in terms of the order-in-review dated 14.08. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cising the powers in terms of Section 35-E(2) of the Central Excise Act, 1944 and directed the Assistant Commissioner to file an appeal before the Commissioner of Central Excise (Appeals). In terms of the said review order of the Commissioner, an appeal was filed before the Commissioner (Appeals), who vide his impugned order set aside the order of the original adjudicating authority and allowed the appeal filed by the Revenue. Hence the present appeal by the assessee. 3. The preliminary objection raised by the learned advocate is that, during the relevant period, there was no power with the Commissioner to direct the lower authority to file an appeal before the Commissioner (Appeals) by drawing our attention to the provisions of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (1) was replaced and new Section 84(1) was introduced which is to the following effect: 84 (1) The Commissioner of Central Excise may, of his own motion, call for and examine the record of any proceedings in which an adjudicating authority subordinate to him has passed any decision or order under this Chapter 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 or any Central Excise Officer ,subordinate to him to apply to the Commissioner o Central Excise (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Commissioner of Central Excise in his order. 6. A reading of the above Sections c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise Act, 1944. The dispute in the present appeal relates to the refund of the service tax, excess paid by the assessee, and as such the provisions of the Finance Act, 1994 would apply. However, we note that certain provisions of Central Excise Act, 1944 have been adopted for the disputes relating to service tax in terms of the provisions of Section 83 of the Finance Act, 1994. On going through the Section 83 of the Finance Act, 1994, we note that while adopting certain provisions of Central Excise Act, 1944, which stand mentioned in the said Section itself, Section 35-E does not stand adopted. In this view also, we find that the order directing the lower authority to file an appeal before the Commissioner (Appeals) is beyond the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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