2007 (7) TMI 476 - AT - Customs

Summary

Issues Involved:
1. Maintainability of appeals filed by the Commissioner himself prior to the 2005 amendment to Section 35B(2) of the Central Excise Act, 1944 and Section 129A(2) of the Customs Act, 1962.

Summary:

1. Maintainability of Appeals Filed by the Commissioner:

This batch of appeals involves the common question of law relating to maintainability for which all such appeals are heard analogous on such issue. The primary issue is whether, prior to the 2005 amendment to Section 35B(2) of the Central Excise Act, 1944, and similar provision under the Customs Act, 1962, the Commissioner himself can file appeals against the Orders of the Commissioner (Appeals) or not.

Section 35B(2) of the Central Excise Act, 1944, prior to its amendment by Section 79 of the Finance Act, 2005, stated that the Commissioner of Central Excise may direct any Central Excise Officer authorized by him to appeal on his behalf to the Appellate Tribunal against such order. A similar provision existed under Section 129A(2) of the Customs Act, 1962.

Dr. Samir Chakraborty, learned Advocate, argued that the Commissioner must authorize a Central Excise Officer to file an Appeal before the Tribunal and cannot directly file an appeal himself. He cited the decision of the West Regional Bench of the Tribunal in the case of C.C.Ex., Surat-I v. Shree Ganesh Dyeing & Printing Works and other related cases to support his argument.

Shri N.C. Roychowdhury, learned Senior Advocate for the Department, contended that since the Commissioner can authorize filing of an appeal, he himself has the power to file the appeal. He cited the decision of the Commissioner of Customs-II, New Delhi v. Raj Kumar Madan, which held that appeal filed by the Commissioner himself is valid.

Shri Bagaria and Shri C.S. Lodha, learned Advocates, also supported the view that the Commissioner can file an appeal directly, arguing that the Commissioner is a Central Excise Officer and can authorize himself to file the appeal.

The Tribunal observed that the statutory right of redressal was exercisable by the Commissioner conditioned by the act of drawing an opinion as to the legality and propriety of the Order. The Tribunal concluded that the Commissioner himself is not prevented from exercising the right of filing an appeal on behalf of the Union of India without authorizing another officer to do so. Any interpretation contrary to this would lead to injustice and disharmony.

In view of the divergent views in previous cases and the matter being referred to the Larger Bench for consideration, the Tribunal also referred this batch of appeals to the Larger Bench for resolving the issue. The Registry was directed to place these cases before the Hon'ble President for the constitution of a Larger Bench, and upon decision by that Bench, the matters shall be decided on the facts and circumstances of each case.

(Pronounced in the Court on 4-4-07)