Statutory review power under Central Excise law cannot direct a subordinate officer to file an appeal; departmental appeal was not maintainable.

Section 35E(2) of the Central Excise Act, 1944 was read as limiting the Commissioner of Central Excise's review direction to the adjudicating authority that passed the original order. The expression "such authority" was held to refer to that adjudicating authority, and not to a subordinate officer such as an Assistant Commissioner. Because the statute did not extend the power under sub-section (2) in the way sub-section (1) was later amended, a direction to a different officer to file the appeal was treated as ultra vires the provision. The departmental appeal was therefore held not maintainable, and the order of the Commissioner (Appeals) was upheld.

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Issues: Whether, under Section 35E(2) of the Central Excise Act, 1944, the Commissioner of Central Excise could validly direct an Assistant Commissioner, and not the adjudicating authority, to file an appeal before the Commissioner (Appeals).

Analysis: The scheme of Section 35E(1), (2) and (4) was read as confining the power of review and direction to the authority that had passed the adjudication order. The distinction between sub-sections (1) and (2), and the later insertion of the words permitting a different Commissioner under sub-section (1), supported the view that no similar enlargement was intended under sub-section (2). The expression "such authority" in Section 35E(2) was therefore understood to mean the adjudicating authority, and the direction to a subordinate officer to file the appeal was treated as beyond the statutory mandate.

Conclusion: The departmental appeal was not maintainable and the order of the Commissioner (Appeals) was upheld.

Ratio Decidendi: Under Section 35E(2) of the Central Excise Act, 1944, the Commissioner of Central Excise may direct only the adjudicating authority who passed the order, and not a subordinate officer, to file an appeal.

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