2006 (12) TMI 571

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....t the learned Commissioner has not followed the law as laid down in the Section inasmuch that he has not come to the conclusion that the order-in-appeal is not legal and proper and that he has himself filed the appeal which is contrary to the provisions of Section 35B(2). 3. Replying to preliminary objection learned D.R. submits that the Commissioner (Appeals) has, in fact, come to the conclusion that the order is legal and proper inasmuch that the grounds of appeals indicate that the Commissioner (Appeals) has come to that conclusion. As regards the second preliminary objection raised by the respondents it is his submission that the provisions of Section 12E would apply which empowers higher officer to exercise the powers and discharge ....

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....uable one, hence we are not able to form an opinion. 5. As regards the second preliminary objection we find that the provisions of Section 35B(2) mandates the Commissioner to direct "any Central Excise officer" to file an appeal to the Tribunal. In this case before us the Commissioner himself has filed the appeals. An identical issue was raised before the Tribunal in the case of CCE, Surat-1 v. Shri Ganesh Dyeing and Printing Works, as reported at 2006 (76) RLT 858 (CESTAT). There was a difference of opinion on this point between the Hon'ble Member (Judicial) and Hon'ble Member (Technical) and it was referred to the Hon'ble Member (Judicial). The Hon'ble Member has held as under:- 10. The Ld. Member (Technical) b....

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.... about the maintainability of the appeal by the Commissioner himself has noted that his objection is not taken by the respondents whereas the Ld. Member (Judicial) in the very same order had also dealt with this objection. This goes to show that the appellants have taken the objection with regard to the formation of defective opinion about the impugned order passed by the lower appellate authority and as well as the propriety of the Commissioner himself in filing the appeal instead by another officer on due authorization. As a matter of fact, Section 35B (Sub-section 2) comprises both these elements. In this context it is to be said that the appellants obviously raised both these grounds otherwise the Ld. Member (Judicial) could not have de....