2008 (9) TMI 625 - AT - Customs

Appeal by Department - Appointment of authorities - Publication of - Evidence - Gazette - Words and Phrases - Question of law - Jurisdiction

Summary

Issues Involved:
1. Locus standi of the Reviewing Authorities.
2. Validity of appointments of Chief Commissioners.
3. Compliance with statutory requirements for appointment notifications.
4. Maintainability of the Department's appeals.
5. Specific procedural defects in the review orders.

Detailed Analysis:

1. Locus Standi of the Reviewing Authorities:
The tribunal scrutinized the locus standi of the Reviewing Authorities to ascertain the maintainability of the appeals. The central issue was whether the Chief Commissioners who signed the Review Orders were appointed in accordance with the law and properly invested with the power under the statute to perform the review function.

2. Validity of Appointments of Chief Commissioners:
The tribunal noted that the Reviewing Authorities, Shri Rajendra Prasad and Shri H.K. Saran, were not duly appointed by appropriate Notification in the Official Gazette as required under Rule 3 of the Central Excise Rules, 2002 and Section 2(b) of the Central Excise Act, 1944. The absence of such notification rendered their appointments invalid, making the review orders they signed null and void.

3. Compliance with Statutory Requirements for Appointment Notifications:
The tribunal emphasized that the appointment of public functionaries must be made known to the public through a notification in the Official Gazette. Failure to do so results in the functionaries being powerless and their actions void. The tribunal cited several legal precedents affirming that statutory functions must be performed by officers validly appointed through the prescribed manner.

4. Maintainability of the Department's Appeals:
The tribunal found that the appeals were not maintainable due to the invalid appointments of the Reviewing Authorities. The review orders lacked dates and failed to demonstrate when the authorities met, further questioning their validity. The tribunal declared the act of review by the signatories in all three appeals ab initio void and non est, dismissing the appeals at the threshold.

5. Specific Procedural Defects in the Review Orders:
The tribunal identified several procedural defects in the review orders:
- Review orders failed to bear dates by the Reviewing Authorities.
- Review orders were dated on two different dates or one date was missing.
- Records did not demonstrate whether the Reviewing Authorities met in person to participate in the discussion and apply their judicial mind.
- There was no express provision sanctioning review by circulation.

Conclusion:
The tribunal dismissed all three appeals filed by the Revenue due to the lack of valid appointments of the Reviewing Authorities, which rendered the review orders null and void. The tribunal stressed the importance of following statutory requirements for appointing authorities through notifications in the Official Gazette to uphold the law's majesty and ensure the proper functioning of statutory bodies.