2006 (8) TMI 65

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....pellate 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 Commissio....

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....in orders. (1)     xxx xxx xxx (2)     The Commissioner of Central Excise may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authorities subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order an....

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....against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals, including the provisions of sub-section (4) of Section 35B shall, so far as may be, apply to such application" 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 ....

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....thorised 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 aut....