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TMI Blog2004 (6) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... rits of the case on the sole ground that the authorization given to the Deputy Commissioner to file appeal is not a valid authorization. While passing the said order he has relied on the decision of the Tribunal in the case of Dhampur Sugar Mills Co. Ltd. v. Collector of C. Ex., Meerut - 1999 (108) E.L.T. 498 (Tribunal). This appeal has been filed, against the impugned order passed by the Commissioner (Appeals), by the Deputy Commissioner as authorized by the Commissioner. The short question that arises for consideration in this appeal filed by the Department is whether the authorisation given to the Deputy Commissioner to file an appeal before Commissioner (Appeals) against an adjudication order passed by the Joint Commissioner was a valid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Tribunal/Commissioner (Appeals). The legal provisions in this regard are contained in Sections 129D(1) and (2) of the Customs Act, 1962 and Sections 35E(1) (2) of the Central Excise Act, 1944, which read as follows :- "Section 129D. - (1) The Board may, of its own motion, call for and examine the record of any proceeding in which a Commissioner of Customs as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such Commissioner or any other Commissioner to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the Boa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Commissioner (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." Section 129D(1) of the Customs Act, 1962 and Section 35E(1) of Central Excise Act, 1944 initially provided that Board may direct 'such Commissioner' to file appeal to the Appellate Tribunal, but these provisions have been amended by the Finance Act, 2001, to provide that Board may direct 'such Commissioner or any other Commissioner' to appeal to the Tribunal. Admittedly similar amendments have not been made to Section 129D(2) and Section 35E(2) which require the Commissioner to direct 'such authority' (i.e. the Adjudicating Authority) to file appeal before Commissi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Tribunal) also, another two member Bench comprising of the then President has also held that the Collector can direct the Adjudicating Authority or any other officer to file an appeal by a harmonious construction of sub-sections (2) and (4) of Section 35E of the Central Excise Act, 1944. 5. However, as pointed out by the learned Advocate for the respondents following three decisions of the Tribunal passed subsequently by two member Benches have essentially held that on review the Collector/Commi-ssioner must authorize the Adjudicating Authority himself for filing appeal and that authorization to another officer to file appeal is not valid :- (1) Dhampur Sugar Mills Co. Ltd. v. C.C.E., Meerut - 1999 (108) E.L.T. 498 (Tribunal), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... member Benches of the Tribunal are based on an incorrect reference to the said Apex Court decision apart from being contrary to the earlier decisions of the Tribunal cited above. 7. Moreover, the right of Revenue to file an appeal against an illegal and improper order on review is a substantive right. Authorizing a particular officer to file the appeal against an illegal and improper order is a matter of procedure. The act of authorizing an officer different from the Adjudicating officer to file the appeal, when filing such appeal is warranted in the interest of public revenue cannot be questioned so long as the Commissioner, in whom the power of Review is vested, has applied his mind and has come to a conclusion that the order of the Ad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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