2005 (11) TMI 105

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....Excise as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such Commissioner to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the Board in its order. (2) The Commissioner of Central Excise may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority sub-ordinate 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 as to the legality or propriety of any such decision or order any ....

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....oner of Customs & Central Excise, Vadodara - 2002 (143) E.L.T. 112 so as to mean that the Board is empowered to assign the function of a particular level of the officer to another officer of the same level. The contention of the Company that the direction under Section 35E (1) to the adjudicating authority for filing against his own order should be to the same person who passed the order, was rejected and it was held that the expression "such Commissioner" occurring therein is to be interpreted liberally to include successor Commissioner also, even for a period prior to the amendment to the Section by which the expression "any other Commissioner" was included. The Tribunal held that sub-section (1) of Section 35E speaks of only one level of....

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....) E.L.T. 401, Sun Export Corporation v. Collector of Customs - 1989 (42) E.L.T. 308 and Collector of Central Excise, Bangalore v. Falcon Tyres Limited - 1997 (91) E.L.T. 649 on the interpretation of Section 35E(2). However, in none of these three cases it was held that an appeal filed by an Officer of lower level than the Commissioner was maintainable. In the case of Mirah Exports (P) Ltd, the Tribunal held that an appeal filed by the Collector, who was authorized by the Board was valid even though the adjudication order against which an appeal was filed, was passed by the Additional Commissioner. The Ld. Collector included an Additional Collector and they had concurrent jurisdiction. In Sun Export Corporation, the Tribunal held that an app....

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....y other proper officer. In those cases as recorded by the Bench in CCE v. Hari Vishnu Packing (supra) there was no case of a different level of authority than the Adjudicator being directed. The authority was of a Collector or of a same level, as held in Dhampur Sugar Mills Ltd. - 1999 (108) E.L.T. 498. In the context of the present case, there is no conflict between sub-section (2) and sub-section (4) of Section 35E for the reason that sub-section uses expression "Commissioner of Central Excise as adjudicating authority" and "such Commissioner" and sub-section(4) also uses expression "adjudicating Officer". The level of the Officer remains the same. Further, as already indicated herein above, the language of sub-section (1) is clear and un....