2007 (7) TMI 452 - AT - Central Excise

Maintainability of appeal - Appeal by Department - review of order - sub-section (2) of Section 35B of Central Excise Act, 1944 - jurisdiction

Summary

Issues: Authorization for filing appeal under Section 35B of Central Excise Act, 1944

In this judgment, the issue revolves around the authorization for filing an appeal under Section 35B of the Central Excise Act, 1944. The appeal was directed against Order-in-Appeal No. AT/641/Bel/2005, dated 30-11-2005. The respondent raised a preliminary objection against the appeal, arguing that the authorization for filing the appeal was signed by only one Commissioner, which was contrary to the provisions of sub-section (2) of Section 35B. The respondent relied on previous judgments to support this argument. On the other hand, the SDR contended that the authorization was correct as the same Commissioner held additional charges of Commissioner, Belapur, and Commissioner, Central Excise, Raigad. The Tribunal considered both sides' submissions and examined the records.

The Tribunal found that the authorization for filing the appeal was indeed signed by the Commissioner of Belapur Commissionerate, who also signed as the second Commissioner. Citing the Division Bench judgment in the case of Maikaal Fibres Ltd., the Tribunal held that if a Commissioner holds additional charge of two Commissionerates, they cannot sign as Commissioner of both while reviewing orders. The Tribunal noted that the SDR's reliance on a different case was misplaced as the Division Bench decision in Maikaal Fibres Ltd. was not cited before the Single Member Bench, rendering the other order per incuriam. Consequently, the appeal filed by the revenue was dismissed as non-maintainable, and the cross-objection filed by the respondent was also disposed of.