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2006 (11) TMI 454 - AT - Central Excise
Issues involved: Appeal filed by Revenue without proper authorization u/s 35B(2) of Central Excise Act.
Summary: The appeal was filed by Revenue, but a preliminary objection was raised by the Respondent-assessee regarding the lack of proper authorization u/s 35B(2) of the Central Excise Act. The learned Counsel argued that the appeal was not maintainable as the concerned Committee of Commissioners did not authorize the appeal as required by law. They cited various judgments to support their contention, including cases where appeals were dismissed due to lack of proper authorization. The Counsel also pointed out that a new Committee of Commissioners had filed a Miscellaneous Application seeking to rectify the defect, which was also challenged as not sustainable in law. On the other hand, the Consultant for the Commissioner argued that the interest of Revenue should be safeguarded and requested permission for a Miscellaneous Application to rectify the defect and introduce new grounds for the appeal. However, the Counsel resisted this request, stating that the nature of the appeal had changed with the new Committee of Commissioners filing the Miscellaneous Application. The Consultant relied on several citations to support their argument. The Tribunal considered the submissions and analyzed the provisions of Section 35B(2) of the Central Excise Act, which require the Committee of Commissioners to express their opinion on the legality of the impugned order before authorizing an appeal. It was noted that the Committee of Commissioners had directly filed the appeal without following the prescribed procedure. The Tribunal found this to be a clear violation of the law and held that the error was non-curable and could not be rectified by the Miscellaneous Application. The Tribunal referred to previous judgments where similar errors led to the dismissal of appeals. Ultimately, the Tribunal upheld the preliminary objection raised by the Advocate regarding the maintainability of the appeal and dismissed the appeal as not maintainable. The Miscellaneous Application filed by the new Committee of Commissioners was also rejected, and both the Application and the Appeal were dismissed. *(Pronounced in open Court on 22-11-2006)*
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