2008 (8) TMI 35

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....his appeal has been filed by the Assistant Commissioner (Technical), Central Excise, Siliguri Commissionerate against the impugned order passed by the lower appellate authority. We find that the appeal has been filed on 24th May, 2005 along with an authorization dated 18-5-05 signed by the Commissioner, Central Excise, Siliguri Commissionerate. 2. Shri B. N. Chattopadhyay, ld. Consultant appearing for the respondents, takes preliminary objection that on the date of filing the appeal as well as on the date of issuing the authorization, the statutory provisions under Section 35B(2) had undergone change by amendment made on 13-5-05 through the Finance Act, 2005 and that under the amended law, the Commissioner did not have the power to review ....

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.... Commissioner (Appeals) was not legal or proper, he could direct any Central Excise Officer authorized by him to file an appeal before the Tribunal against such order. However, w.e.f. 13-5-05 only the Committee of Commissioners, if it is of the opinion that the order passed by the Commissioner (Appeals) is not legal or proper, can direct any Central Excise Officer to file an appeal against such order to the Tribunal. In this case, the impugned order was no doubt passed prior to 13-5-05. However, on the date of filing the appeal, the law stood amended by the Finance Act, 2005. Hence, any appeal filed on or after 13-5-05 had to be filed in accordance with the amended provisions. Similarly, any authorization issued under the said Section 35B(2....

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....tee of Commissioners who was empowered under the said Section 35B(2) and not he. Had he looked at the amended legal provisions, he would have also noticed that under sub-section (1B) of Section 35B, the Board has been empowered to constitute Committee of Commissioners and further that under Notification No. 25/05 (N.T.), dated 13-5-05, the Board had constituted such Committees. By not perusing the legal provisions which he has invoked while issuing the authorization, the said Commissioner has acted without having jurisdiction to review the impugned order and to authorize filing of appeal against the same. In effect, he has usurped the power of the Committee and has acted on his own contrary to the statutory provisions in force at the materi....