2010 (10) TMI 139 - AT - Central Excise

Appeal by Department - Authorisation - Tribunal is not entitled to review the formation of opinion by the Commissioner - Tribunal cannot factually ascertain whether there is compliance with the statutory requirement of sub-section (2) of Section 35B of the Act namely fulfilment of the mandatory pre-requisite condition before an appeal is lodged with the Tribunal - it is not mere formality but the Review Committee has to arrive at the decision whether the impugned order was legal or proper or not and whether appeal to be filed or not - decision taken in this case is not of Review Committee hence the authorisation is defective

Summary

Issues:
- Appeal against order allowing utilisation of Cenvat credit
- Preliminary objection regarding appeal maintainability based on authorisation without date
- Interpretation of Section 35B of the Central Excise Act
- Requirement of Review Committee decision for appeal authorisation

Analysis:
The appeal was filed by the Revenue against the Commissioner (Appeals) order allowing the respondent to utilise unutilised Cenvat credit post factory transfer. The respondent's advocate raised a preliminary objection citing the authorisation without a date, indicating a procedural defect. The Revenue argued that the defect was curable and should not lead to dismissal based on technicalities. However, the Tribunal noted discrepancies in the signing of the noting sheet by different Commissioners, highlighting the lack of a Review Committee meeting to decide on the appeal's legality. This failure to follow the procedure outlined in Section 35B of the Central Excise Act, which requires the Review Committee's decision, rendered the authorisation defective.

The Tribunal referred to a case precedent emphasizing that the Review Committee's decision on the legality of the impugned order and the appeal filing is not a mere formality but a crucial step. The High Court ruling stressed the significance of the Commissioner forming an opinion on the legality of the appellate order before authorising an appeal. It clarified that the formation of opinion is a mandatory prerequisite, not a procedural formality, ensuring compliance with statutory requirements. The Tribunal cannot review the Commissioner's opinion formation but can verify factual compliance with the statutory conditions before lodging an appeal.

Ultimately, the Tribunal concluded that the decision in this case did not involve the Review Committee, making the authorisation defective. Consequently, the preliminary objection raised by the respondent's advocate was upheld, leading to the rejection of the appeal. This detailed analysis underscores the importance of adhering to procedural requirements, such as Review Committee decisions and Commissioner's opinion formation, in authorising appeals under the Central Excise Act.