2000 (4) TMI 283

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....4,18,998.22 and the penalty imposed on them was also set aside. In such types of orders where the department is aggrieved, the Commis­sioner may authorise under Section 35B(2) any Central Excise officer, if the order passed by the Commissioner (Appeals) is not legal and proper, to appeal on his behalf to the appel­late Tribunal. In the authorisation dated 19-11-1999 it has been mentioned as follows : "Whereas in exercise of the powers vested in me under Section 35E(2) of the Central Excise Act, 1944, I have called for the records of the proceed­ings in respect of M/s. Atul Ltd., P.O. Atul, Dist. Valsad, in which the Commissioner (Appeals), Customs & Central Excise, Surat, has passed the Order-in-Appeal No. SSS/SRT/1406/99 dat....

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....ssessee says that the judgment of the Supreme Court in Rohit Pulp Paper Mills should be seen. 3. I have considered the rival submissions. Normally, whenever an authority passed an order wrong mentioning of rule should not deny the authority to exercise the power enshrined under the Act. Here the judgment of the Supreme Court in Rohit Pulp Paper Mills may proceed on the basis that the provisions of section 35B should be treated as a mandatory way. The authorisation extracted above shows that section 35E(2) deals with an appeal before the Commissioner (Appeals). The power of the Commissioner is to authorise officers subordinate to him to file appeal before the Commissioner (Appeals) against an order passed by the adjudicating authorit....