TaxTMI 
TaxTMI 
2008 (11) TMI 67
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....) of the Central Excise Act, 1944, validly authorise the Superintendent (Appeals), Central Excise and Customs to present such appeal to the Appellate Tribunal, and will the appeal so presented be maintainable or not?" 2. However, after hearing the learned advocates appearing for both the sides the Court finds it appropriate to reformulate the question as under: "Whether on the facts and in the circumstances of the case provisions of Section 35E(1) of the Central Excise Act, 1944 permit any other person, other than the Commissioner of Central Excise, who is directed by Central Board of Excise and Customs to make an application under Section 35E(1) of the Act to the Appellate Tribunal, to make such an application?" 3. It appears that....
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.... filed by a Superintendent (Appeals) and filing of an appeal is certainly cannot be a ministerial function, but a substantive function, which cannot be further delegated to any other officer by the Commissioner, who is the officer to whom a direction was given by the Board under Section 35E(1)." 5. Thereafter, in the immediately succeeding Paragraph, namely, Paragraph No. 7 the reference is answered by stating that the Commissioner, who is directed by the Board, cannot validly authorise Superintendent to present such application to the Tribunal and the appeal will not be maintainable. 6. The Bench, which passed the order originally, in conformity with the decision of the Larger Bench, dismissed the appeal as not maintainable on 20-1-2....
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....ing authority, to apply to the Tribunal The application to be so made by the Commissioner is for the determination of such points arising out of the decision/order of the Commissioner as may be specified by the Board in the order made by the Board. Therefore, what has to be verified by the Tribunal on examination of the application so made is as to who is the applicant, namely, who is the signatory to the application. Physical presentation of the application could be by any one for which no authorization is necessary. In fact the application could be sent by post also. Therefore, who presented the application is an irrelevant factor and the Tribunal has misdirected itself in law in placing emphasis on the factum of the presentation of the a....
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.... respondent-assessee has all along been that the Commissioner had erroneously authorized the Superintendent to file the appeal. It was therefore, all the more necessary for the Tribunal to ascertain factually whether the Superintendent had filed the application, namely, signed the application or whether it was the Commissioner who had signed the application. The Tribunal has also committed an error in law in reading Section 35E(2) of the Act by presuming that the powers available under the said provision can also be exercised by the Commissioner while discharging duty under Section 35E(1) of the Act. The powers available to the Commissioner under sub-section (2) of Section 35E of the Act are not available to the Commissioner to be exercised....