COMMISSIONER OF CENTRAL EXCISE Vs. MAZA COSMETICS

JUDGEMENT

(1.) THE Revenue is aggrieved by an order dated 10th December, 2004 passed by the Customs, Excise and Service Tax Appellate Tribunal in Appeal No. E/2979/04 -NBSC.

(2.) THE short issue in this case is that the adjudicating Authority (Joint Commissioner) passed an order which was considered by the Commissioner of Central Excise in terms of Section 35E(2) of the Central Excise Act, 1944. After considering the legality or propriety of the adjudication order, the Commissioner gave a direction to the Deputy Commissioner to file an appeal against the adjudication order passed by the Joint Commissioner. The Deputy Commissioner filed an appeal which was taken up for consideration by the Commissioner of Central Excise (Appeals). Vide order dated 23rd March, 2004 he came to the conclusion that the Commissioner could have directed only the Joint Commissioner as the adjudicating authority to file an appeal under Section 35E(2) of the Act and could not have issued such a direction to the Deputy Commissioner. Feeling aggrieved, the Revenue preferred an appeal to the Tribunal which upheld the view taken by the Commissioner (Appeals). That is how the matter is now before us. Section 35E(2) and Section 35E(4) of the Act read as follows:

(3.) THE contention of learned Counsel for the Revenue is that in terms of Section 35E(4) the authorised officer (In this case the Deputy Commissioner) could have filed an appeal to the 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 officer, it appears to us will have to be authorised 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.