9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2013 (7) TMI 924 - HC - Central ExciseMaintainability of appeal - Section 35G of Central Excise Act - dismissal on the ground that there was no consent by both the Commissioners at one time - Held that - Sub-section (2) of Section 35B of the Act provides that the appeal against the order of the Commissioner under Section 35 can be filed if the Committee of Commissioners of Central Excise is of the opinion that the order passed by him is not legal or proper. This authorisation is signed by both the Commissioners. However, one of them has signed on 4-11-2008 and the other one has signed on 5-11-2008 - There is no mandate that both the Commissioners should sign the authorisation on the same day. The relevant thing is that both the Commissioners must agree on the opinion that the order of the Commissioner (Appeals) is not legal and further appeal should be filed against the same. This was done in the present case. Appeal allowed - decided in favor of appellant.
Issues:
Appeal under Section 35G of Central Excise Act against Tribunal's order due to lack of consent by both Commissioners for filing appeal. Analysis: The case involved an appeal under Section 35G of the Central Excise Act against the order of the Tribunal, which dismissed the appeal of the Central Excise Department due to the absence of consent by both Commissioners at one point for filing the appeal. The facts revealed that a search at the factory premises of the assessee uncovered a shortage of sponge iron and clandestine removal, for which duty was paid. Subsequently, the Adjudicating Officer issued a notice for Education Cess, penalty, and interest. The AO confirmed the notice, imposed a mandatory penalty, but did not levy interest. The assessee's appeal before the Commissioner was allowed on the grounds of insufficient evidence supporting clandestine removal. The Department's appeal was then dismissed for lack of consent by both Commissioners simultaneously. The High Court analyzed the legal provisions under Section 35B(2) of the Act, which state that an appeal can be filed against the Commissioner's order if the Committee of Commissioners deems it improper or illegal. The Court emphasized that the Committee's opinion must be recorded, signed by both Commissioners, and provide reasons for finding the order improper before deciding to file an appeal. In this case, both Commissioners signed the authorization on different days, but the Court clarified that simultaneous signing was not mandatory. What mattered was that both Commissioners agreed on the opinion that the order was not legal and decided to file an appeal. As such, the Tribunal erred in dismissing the Department's appeal solely based on the timing of the Commissioners' signatures. In conclusion, the High Court ruled in favor of the Department, allowing the appeal and remanding the case back to the Tribunal for a decision on its merits. This judgment clarified the procedural requirement for filing appeals under Section 35B(2) of the Central Excise Act, emphasizing the need for both Commissioners to agree on the opinion that the order being challenged is not legal before proceeding with an appeal.
|
