2013 (5) TMI 461 - AT - Central Excise

Non-maintainability of the appeal - Held that - Appeal was formed by the officers below the rank of Commissioner. The file was placed before the Committee of Commissioners who simply signed the same without recording any independent opinion. In terms of law declared by the Hon ble Delhi High Court in the case of CCE, Delhi-I Vs Kundalia Industries 2012 (8) TMI 789 - DELHI HIGH COURT the Committee of Commissioners is required to form an independent opinion themselves and then to file an appeal instead of signing the already formed opinion of lower authorities.Appeal is dismissed.

Summary

Issues: Non-maintainability of the appeal filed by the Revenue due to lack of independent opinion in terms of proviso of Section 35-B(2).

The judgment delivered by Mrs. Archana Wadhwa addressed the issue of the non-maintainability of the appeal filed by the Revenue. The learned Advocate for the respondent raised a preliminary issue regarding the absence of an independent opinion as required by the proviso of Section 35-B(2). Upon reviewing the original papers produced by the learned DR, it was noted that the decision to file the appeal was made by officers below the rank of Commissioner, and the Committee of Commissioners merely signed the papers without forming an independent opinion. Referring to the legal precedent set by the Hon'ble Delhi High Court in the case of CCE, Delhi-I Vs Kundalia Industries, it was highlighted that the Committee of Commissioners must independently form an opinion before filing an appeal, as reiterated in various decisions by the Tribunal. The Tribunal had previously rejected Revenue's appeal in a similar case, citing the requirement for an independent opinion. Consequently, the Revenue's appeal in this case was dismissed on the grounds of non-maintainability due to the lack of an independent opinion as raised by the respondents.

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