TaxTMI 
TaxTMI 
2010 (10) TMI 139
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....still lying unutilised in respondent's Cenvat credit account since the transfer of the factory. 2. Ld. Advocate for the respondent took the preliminary issue that the appeal is not maintainable on the following grounds :- (a) The authorisation is without date and the Commissioner also singed the authorisation without any date. On this preliminary objection, the official record was called and on the green sheet also, it was noticed that one Commissioner has signed the noting sheet on 21st Nov. 2008 and another Commissioner has signed the noting sheet on 24th Nov. 2008, the same were taken on the record. 3. The ld. DR submitted that in this case the noting sheet has been signed by the Commissioner wi....
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....ction 35A; (c) an order passed by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act (54 of 1963) (hereafter in this Chapter referred to as the Board) or the Appellate Commissioner of Central Excise under Section 35, as it stood immediately before the appointed day; (d) an order passed by the Board or the Commissioner of Central Excise, either before or after the appointed day, under Section 35A, as it stood immediately before that day." 17. As per Section 35B to file an appeal by the department before the Tribunal, first the Commissioner has to arrive at a decision whether the impugned order is legal or proper or not and whether the appea....
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....er clause (c) of sub-section (1) of Section 35B of the Act. 10. However, when one comes to sub-section (2) of Section 35B of the Act it becomes clear that the right statutorily granted to file an appeal under sub-section (1) of Section 35B of the Act is defined by provisions of sub-section (2) of Section 35(B) of the Act when Commissioner intends to prefer an appeal challenging the appellate orders made by either Commissioner (Appeals) or the Appellate Commissioner. The Commissioner is not entitled to challenge the other orders specified in other clauses of sub-section (1) of Section 35B of the Act in exercise of powers under sub-section (2) of Section 35B of the Act. 11. Section 35B(2) of the Act is made up of two parts or two s....
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....on that where Commissioner decides to file the appeal himself, he need not form an opinion, is an incorrect reading of the requirement of the provision. There could be innumerable instances where, even after forming an opinion that the order of the appellate authority is not legal or proper, the Commissioner may decide not to prefer an appeal, for example in a case where the tax effect is low or meagre. Therefore, the statutory scheme envisaged by the Legislature cannot be read to operate differently in different situations; that formation of opinion is a necessary pre-requisite when the appeal is to be filed by an authorised officer, and is not a prerequisite condition when the appeal is to be filed by the Commissioner himself. Therefore, ....