IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Central Excise Appeal No. 4 of 2011 The Commissioner, Customs & Central Excise Meerut-II ….…… Appellant Versus M/s Century Pulp & Paper, Lalkuan, Nainital ……….Respondent Mr. Hari Mohan Bhatia, Advocate for the appellant. Date of Judgment: 12.07.2011 JUDGMENT Coram: Hon’ble Barin Ghosh, C.J. Hon’ble Servesh Kumar Gupta, J. BARIN GHOSH, C.J. (ORAL) Despite notice duly served upon the respondent, none appears. Considered the matter on merit. Heard learned counsel for the appellant. Considered the records. 2. We are of the view that the present appeal is ill advised. Sub-Section (2) of Section 35E of Central Excise Act, 1944, as stood prior to 13th July, 2006, authorized the Commissioner to direct the adjudicating authority only to prefer an appeal. When the authority to do so had been specifically provided by the legislature in Sub-Section (2) of Section 35E of the Act, the Commissioner, under no circumstances, could do anything contrary to what has been provided in Sub-Section (2) of Section 35E of the Act. The learned counsel for the Revenue submitted that Sub-Section (4) of the Act talks about adjudicating authority or the authorized officer. It was contended that because of use of the word ‘authorized officer’ in Sub-Section (4), the Commissioner could authorize an officer, apart from the adjudicating authority, to file an appeal under Sub-Section (2) of Section 35E. We outrightly reject the said contention. The matter stands concluded since the judgment of the Hon’ble Supreme Court rendered in the case Collector of Central Excise Vs M.M. Rubber Company reported in 1991 (55) E.L.T. 289 (S.C.), where the Hon’ble Supreme Court has pronounced that the Commissioner, in terms of Sub-Section (2) of Section 2 35E can only direct such authority, subordinate to him, whose order is required to be appealed against. 3. In the instant case, the direction was admittedly given to file an appeal to an authority, which was not the adjudicating authority, whose order was examined by the Commissioner and that the direction of the Commissioner to prefer an appeal was issued prior to 13th July, 2006. The appeal fails and the same is dismissed. (Servesh Kr. Gupta, J.) (Barin Ghosh, C.J.) 12.07.2011 12.07.2011 Aswal