2010 (6) TMI 681 - AT - Central Excise

Summary

Issues involved: Authorization for filing appeal u/s 35B(2) of the Central Excise Act, Requirement of filing two appeals against different parties, Defect in authorization by the Committee of Commissioners.

Authorization for filing appeal u/s 35B(2) of the Central Excise Act:
The appeal was filed without proper authorization by the Committee of Commissioners as required u/s 35B(2) of the Central Excise Act. The initial authorization was signed only by one Commissioner, not the entire Committee, which raised doubts about its legality. The respondent argued that mere signatures of two Commissioners recommending the appeal may not fulfill the requirement of forming an opinion as mandated by Section 35B(2). However, the Department contended that once the Committee approves the appeal, it implies confirmation that the order is not legal and proper. The Tribunal acknowledged the need for improvement in the filing process but agreed with the Department's stance that the Committee's approval indicated their opinion on the impugned order's legality.

Requirement of filing two appeals against different parties:
The respondent pointed out that since the Commissioner (Appeals) had decided two appeals, one against the respondent Company and the other against an individual, the Department should have filed two separate appeals. However, the CESTAT Procedure Rules did not explicitly address this issue. The Department argued that in cases where multiple parties are aggrieved, only one appeal needs to be filed, listing all parties as respondents. The Tribunal found the Department's approach of filing one appeal against both parties to be in compliance with the procedure.

Defect in authorization by the Committee of Commissioners:
Although the Committee had approved the appeal, it did not specifically authorize any particular officer to file the appeal, which was considered a defect. The Tribunal deemed this defect as curable based on precedents where similar issues were allowed to be rectified. The learned Advocate for the respondents did not provide any authority mandating the filing of two appeals, and the CESTAT Procedure Rules did not address this requirement. The Tribunal directed the Registry to issue notice to the other respondent, acknowledging the need for rectifying the defect in authorization.

(The matter is adjourned to 27-7-2010)