Central Excise - directions to file appeal to be given by Commissioner only to same adjudicating authority: CESTAT LB

By Vijay Kumar

A Division Bench of the Tribunal by an interim order reported as - 2016-TIOL-1721-CESTAT-DEL referred to Larger Bench for resolving the questions of law:

"Whether in terms of the provisions of Section 35 E(2) of the Central Excise Act, 1944, directions to file the appeal are required to be given by the Commissioner only to the very same authority, who adjudicated the case or the same can be given to any other authority."

Section 35E(2) then read as:

(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 subordinate 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 decision or order and may, by order, direct such authority to apply to the Commissioner (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Commissioner of Central Excise in his order.

The Larger Bench of the Tribunal in a recent order held that directions to file appeal are required to be given by the Commissioner only to the very same adjudicating authority is the mandate of the Section 35E(2) of the Act. - 2016-TIOL-2534-CESTAT-DEL-LB

But this may not be valid for cases after 2006. By the Taxation Laws (Amendment) Act 2006, the Section 35E(2) was amended to substitute such authority with "such authority or any central Excise Officer subordinate to him".

So, now any Central Excise Officer can be authorized to file the application to the Commissioner (Appeals).