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TMI Blog2008 (11) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... Raval, for the Appellant. Shri Paresh M. Dave, for the Respondent. [Judgment per: D.A. Mehta, J. (Oral)]. - This appeal was admitted on 18-10-2007 and the following substantial question of law was formulated at the time of admission: "Whether the Commissioner who is directed by Central Board of Excise and Customs to file appeal under Section 35E(1) read with Section 35E(4) of the Central Excise Act, 1944, validly authorise the Superintendent (Appeals), Central Excise and Customs to present such appeal to the Appellate Tribunal, and will the appeal so presented be maintainable or not?" 2. However, after hearing the learned advocates appearing for both the sides the Court finds it appropriate to reformulate the question as und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Central Excise Act, 1944, validly authorize the Superintendent (Appeals), Central Excise and Customs to present such application (appeal) to the Appellate Tribunal, and, will the appeal so filed be maintainable or not?" The Larger Bench [2006 (202) E.L.T. 605 (Tri.-LB)] held that: "In this case, it is not a question of mere presentation of an appeal. The appeals have been filed by a Superintendent (Appeals) and filing of an appeal is certainly cannot be a ministerial function, but a substantive function, which cannot be further delegated to any other officer by the Commissioner, who is the officer to whom a direction was given by the Board under Section 35E(1)." 5. Thereafter, in the immediately succeeding Paragraph, namely, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decision or order as may be specified by the Board in its order." 8. On a plain reading it becomes apparent that the Commissioner of Central Excise who has exercised powers as an adjudicating authority is the Commissioner whose decision/order is examined by the Board and thereafter the Board directs such Commissioner, namely, the Commissioner who exercised powers as an adjudicating authority, to apply to the Tribunal The application to be so made by the Commissioner is for the determination of such points arising out of the decision/order of the Commissioner as may be specified by the Board in the order made by the Board. Therefore, what has to be verified by the Tribunal on examination of the application so made is as to who is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Appellate Tribunal for determination of the points specified by the Board in its order. The Tribunal was therefore, required to ascertain and verify from its own record as to who was the applicant, the signatory to the application, and not be concerned with who physically/actually presented the papers of the application. 10. There is one more aspect of the matter. The case of the respondent-assessee has all along been that the Commissioner had erroneously authorized the Superintendent to file the appeal. It was therefore, all the more necessary for the Tribunal to ascertain factually whether the Superintendent had filed the application, namely, signed the application or whether it was the Commissioner who had signed the application. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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