Section 35E direction need not name the original adjudicating Commissioner; successor or holding-charge Commissioner may validly file the application.

Section 35E(1) of the Central Excise Act was construed as a workable procedural provision that does not require the Board's direction to be issued only to the exact Commissioner who passed the adjudication order. Read with the statutory scheme on Commissioners, adjudicating authority, assignment and transfer of functions, the phrase "such Commissioner" was held to include a successor or holding-charge Commissioner where appropriate. The later amendment to Section 35E did not justify a narrower reading. On that construction, the objection to maintainability failed and the Revenue's appeals were treated as tenable.

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Issues: Whether the Revenue's application under Section 35E(1) of the Central Excise Act, 1944 was invalid because the direction to file it was issued to the Commissioner of Central Excise, Meerut-II instead of the Commissioner who passed the adjudication order, and whether the Revenue's appeals were therefore untenable.

Analysis: Section 35E(1) empowers the Board to examine the record of an adjudication order passed by a Commissioner as adjudicating authority and to direct the concerned Commissioner to apply to the Tribunal. The provision was read in the context of the statutory scheme, including the definition of Commissioner and adjudicating authority, the Board's power to assign and transfer adjudicatory functions, and the practical reality that territorial Commissioners are frequently transferred, hold additional charge, or succeed one another. The expression "such Commissioner" was held not to require a rigid identity between the officer who passed the order and the officer directed to file the application. The later amendment to Section 35E did not compel a contrary construction, and the section was treated as procedural and workable only if construed to include the successor or holding-charge Commissioner where appropriate.

Conclusion: The objection to the maintainability of the Revenue's application was rejected and the Revenue's appeals were held to be tenable.

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