2000 (11) TMI 1091 - AT - Central Excise

Summary

Issues:
1. Validity of authorisation by Jurisdictional Commissioner under Section 35B(2) of the Central Excise Act, 1944.
2. Requirement of specific phrases in authorisation for filing appeals.
3. Importance of authorisation in appeals process.
4. Judicial interpretation of phrases "legal and proper" in authorisation.
5. Impact of missing mandatory phrases on appeal validity.

Validity of Authorisation by Jurisdictional Commissioner:
The judgment addresses the issue of the validity of the authorisation made by the Jurisdictional Commissioner under Section 35B(2) of the Central Excise Act, 1944. The Tribunal notes that the authorisation in question did not contain a specific opinion by the Commissioner regarding the legality or propriety of the order being challenged. This lack of specificity has led to the dismissal of several appeals by various Tribunal Benches. The Tribunal emphasizes the importance of the Commissioner's role in assessing the merits of the order and making a definitive statement regarding its legality or propriety before authorising an appeal.

Requirement of Specific Phrases in Authorisation:
The judgment highlights the necessity of including specific phrases, such as "legal or proper," in the authorisation for filing appeals. Referring to a Supreme Court order, the Tribunal emphasizes that the absence of these phrases renders the authorisation deficient and the appeal not maintainable. It is reiterated that where the law prescribes mandatory phrases to be included in the authorisation, their absence cannot be compensated by inferring intent from the language used.

Importance of Authorisation in Appeals Process:
The judgment underscores the significance of the authorisation process in the appeals system. It explains the evolution of the Commissioner (Appeals)'s role and autonomy in reviewing orders passed by subordinate officers. The amendment to the law aimed to provide greater protection to taxpayers by removing the power of review from executive Commissioners and entrusting the Commissioner (Appeals) with the responsibility of determining the correctness, legality, and propriety of orders.

Judicial Interpretation of Phrases "Legal and Proper" in Authorisation:
The Tribunal refers to judicial interpretations regarding the phrases "legal and proper" in the authorisation. It is established that the absence of these phrases renders the order a nullity, as affirmed by the Supreme Court. The judgment emphasizes that the inclusion of specific phrases is a prerequisite for the validity of the authorisation, and their omission cannot be overlooked or assumed.

Impact of Missing Mandatory Phrases on Appeal Validity:
The judgment discusses the consequences of missing mandatory phrases in the authorisation on the appeal's validity. It is clarified that where such phrases are absent, the appeal cannot survive, as seen in numerous Tribunal decisions. The Tribunal stresses the importance of judicial discipline in upholding consistent views across Benches and the possibility of referring matters to a Larger Bench in case of disagreement. Ultimately, the appeals in question are dismissed due to the deficiencies in the authorisation.

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