2005 (7) TMI 211

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.... penalty of Rs. 5,000/- under Rule 173Q of the Central Excise Act. The Commissioner (Appeals) in the impugned order dismissed the Revenue's appeal on the ground that as per Section 35E(2) of the Central Excise Act 1944, the Commissioner should authorize only the Dy. Commissioner to file an appeal and not the Assistant Commissioner since the order was passed by the Dy. Commissioner. The Commissioner (Appeals) relied on the following decisions of the Tribunal. (1)     Sure India v. CCE, Mumbai-V - 2002 (142) E.L.T. 647 (Tri.-Mum.). (2)     M/s. Supreme Industries Ltd. v. CCE, Indore [1999 (114) E.L.T. 1003]. (3)     Malhotra Steel Products v. CCE, Mumbai-III [2000 (38) RLT 4....

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....case, it was held that filing of appeal is only a mechanical act by authorized person by which no injury could be caused to the other party. Authorization is only a matter of procedure and cannot be questioned except in cases where Commissioner has not applied his mind to the impugned order to hold it as illegal or improper. The Tribunal decided that the Commissioner can authorize the Dy Commissioner to file an appeal before the Commissioner (Appeals) against the adjudication order passed by Joint Commissioner. 6. The learned advocate maintained that the Dy. Commissioner's order can be appealed only by Dy. Commissioner and not by Additional Commissioner. He relied on the following decisions. (a)     Amman Steel Cor....

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....or sub-section (2) the adjudicating authority or the authorized officer makes an application to the Appellate Tribunal or the Commissioner (Appeals) within a period of three months from the date of communication of the order under sub-section (1) or sub-section (2) to the adjudicating authority, such application shall be heard by the Appellate Tribunal or the Commissioner (Appeals) as the case may be, as if such application were an appeal made 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." 8. A careful reading of the Section reveals that the Legislature has conferre....