2011 (9) TMI 461 - AT - Central Excise

Decision by circulation - Committee - one commissioner Review the order and other agrees to it - Held That - No express provision in law for decision by circulation - legislature should express their intention to sanction the same - When two minds do not meet together on a particular day, no Committee is said to have been existing at a particular moment - Revenue appeal dismissed.

Summary

Issues: Maintainability of appeal due to lack of unanimous decision by two commissioners forming a Committee.

In the judgment delivered by Shri D.N. Panda, the issue of maintainability of an appeal was discussed. It was noted that the appeal suffered from maintainability due to the lack of a unanimous decision by two commissioners forming a Committee. While one Commissioner signed the Review Order on a specific date, the other Commissioner agreed to the decision on a later date. However, there was no ad dam on a particular day by both commissioners for a unanimous decision. The law expects that a Committee should comprise of two commissioners and have an agreeable decision on the day they form the Committee. The judgment referenced cases where the High Courts observed that the appeal of Revenue does not become maintainable when the pre-requisite of law is not fulfilled, and when there is no unanimous decision by the Committee members. The Tribunal dismissed the Revenue's appeal as non-maintainable due to the lack of a unanimous decision by the commissioners forming the Committee.

The judgment also addressed the argument put forth by the Learned D.R. who relied on a previous decision of the Tribunal in another case. The Learned D.R. argued that the Committee can take a decision by circulation. However, it was noted that such a plea is untenable when there is no express provision in the law for decision by circulation. The expectation from the Committee is regarding the deliberation made and conclusion drawn, and when two minds do not meet on a particular day, no Committee is considered to exist at that moment. Therefore, the Review Order was deemed nonest in the eyes of the law, leading to the dismissal of the Revenue's appeal as non-maintainable. The judgment emphasized that the law does not sanction decisions by circulation without a clear provision for the same, and the lack of unanimity among Committee members renders the decision nonest.