2008 (1) TMI 764 - AT - Central Excise

Summary

Issues involved:
The appeal filed by the Revenue against the order passed by the Commissioner of Central Excise (Appeals), Kanpur raises issues related to the necessity of submitting the opinion of the Committee of Commissioners of Central Excise and the authorization of the Central Excise officer u/s 35-B(2) of the Central Excise Act, 1944 for the appeal to be maintainable.

Details of the Judgment:

Issue 1: Submission of Opinion of Committee of Commissioners and Authorization
The learned Advocate for the respondent raised a preliminary objection against the appeal, contending that the Revenue did not submit the opinion of the Committee of Commissioners or the authorization of the Central Excise officer as required by Section 35-B(2) of the Act. The appeal was signed by a Commissioner who was not in office at the relevant time, rendering it invalid. The learned Advocate cited relevant case laws to support the objection.

Issue 2: Maintainability of the Appeal
The learned DR for the Revenue opposed the objection, stating that the note sheet of the Department's file indicated the Committee of Commissioners directed the filing of the appeal. He argued that the Commissioner of Central Excise, Kanpur had signed the appeal, and any deficiencies were curable as per precedents set by the Tribunal.

Issue 3: Interpretation of Section 35-B(2)
Upon examination of Section 35-B(2) of the Act, it was noted that the Committee of Commissioners must form an opinion and direct a Central Excise officer to file the appeal. The provision was deemed mandatory, and the discretionary power of the Committee was to be exercised within defined limits to prevent abuse of process. The necessity of filing the proper authorization with the opinion was emphasized based on legal interpretations and previous judgments.

Conclusion
In light of the arguments presented, the Tribunal directed the Revenue to rectify the defects by filing the proper authorization with the opinion of the Committee of Commissioners within a specified timeframe. Failure to comply would result in the dismissal of the appeal as not maintainable. The Revenue was also instructed to investigate the allegations regarding the signature of the Appeal by the Commissioner of Central Excise, Kanpur.

The matter was scheduled for compliance on 28th January 2008.