2012 (6) TMI 826 - HC - Central Excise

Summary

Issues Involved:
1. Authorization for filing the appeal u/s 86(2A) of the Finance Act, 1994.
2. Procedural vs. Substantive compliance in filing the appeal.
3. Tribunal's duty to provide an opportunity to cure procedural defects.

Summary:

1. Authorization for filing the appeal u/s 86(2A) of the Finance Act, 1994:
The appeal was dismissed by the Tribunal due to the lack of proper authorization as required under Section 86(2A) of the Finance Act, 1994. The appeal was filed by the Commissioner of Central Excise, Patna, instead of the officer authorized by the Committee of Commissioners. The Tribunal held that there was no authorization by the Committee of Commissioners in favor of the officer who filed the appeal.

2. Procedural vs. Substantive compliance in filing the appeal:
The appellant argued that the requirement for the appeal to be filed by the authorized officer is procedural and not mandatory, citing judgments from the High Courts of Gujarat and Karnataka. The respondent countered that the provision is clear and mandatory, requiring dismissal of the appeal if not filed by the authorized officer. The Court noted that the earlier part of the provision regarding the objection of the Committee of Commissioners is mandatory, but the latter part, which involves directing an officer to file the appeal, is procedural.

3. Tribunal's duty to provide an opportunity to cure procedural defects:
The Court referred to the Supreme Court's judgment in Shaikh Salim Haji Abdul Khayumsab vs. Kumar & others, emphasizing that procedural rules are the handmaid of justice and should not obstruct substantive rights. The Court held that the Tribunal should have given the appellant an opportunity to correct the procedural defect by showing that the appeal was filed by the Committee of Commissioners or the duly authorized officer. The Tribunal's dismissal of the appeal without such an opportunity was against the law.

Conclusion:
The Court set aside the Tribunal's order and remitted the matter back to the Tribunal, directing it to provide the appellant a reasonable time to correct the procedural defect. If the defect is corrected, the Tribunal should hear the appeal on merits. The appeal was allowed to this extent, with no order as to costs.