2013 (7) TMI 672 - AT - Central Excise

Section 35E of Central Excise Act, 1944 - Memorandum of appeal signed and presented by the Superintendent (Appeals), Central Excise & Customs, Surat-I, is maintainable or must be rejected - The Commissioner, Central Excise & Customs, Surat-I (the adjudicating authority), vide authorization letter dt.19.11.1999, directed the Superintendent (Appeals), Central Excise & Customs, Surat-I to apply to this Tribunal under Section 35E (2) of the Act, for determining certain points arising out of the adjudication order dt.31.08.1998 Held that - It is the symptic submission on behalf of Revenue and the respondent-assessee as well, that the several appeals to this Tribunal were preferred under Section 35B of Central Excise Act, 1944, under Memoranda of appeals, to all of which the Superintendent (Appeals), Central Excise & Customs, Surat-I, is the signatory - The appeals are accordingly rejected in terms of the judgment of High Court of Gujarat dt.13.11.2008 in COMMR. OF C. EX. & CUS., SURAT-II Versus SIDDHARTH PETRO PRODUCTS LTD. 2008 (11) TMI 67 - HIGH COURT GUJARAT - Decided against the Revenue.

Summary

Issues:
1. Maintainability of an appeal under Section 35E of the Central Excise Act, 1944, signed and presented by the Superintendent (Appeals), Central Excise & Customs, Surat-I.

Detailed Analysis:

Issue 1: Maintainability of the appeal by Superintendent (Appeals)
The central issue before the Appellate Tribunal was the maintainability of an appeal under Section 35E of the Central Excise Act, 1944, signed and presented by the Superintendent (Appeals), Central Excise & Customs, Surat-I. The Commissioner, Central Excise & Customs, Surat-I, initiated proceedings against the assesses, and the Central Board of Excise and Customs (CBEC) directed the Commissioner to prefer an appeal to the Tribunal to determine issues arising from the adjudication orders. Subsequently, the Commissioner authorized the Superintendent (Appeals) to apply to the Tribunal under Section 35E(2) of the Act. The Larger Bench of the Tribunal deliberated on whether the Commissioner could authorize another officer to present the appeal, and it was held that an appeal signed by the Superintendent would not be maintainable. The High Court of Gujarat ruled that the Commissioner should apply to the Tribunal for determination of points specified by the Board, and if any other person, other than the Commissioner, is the signatory to the appeal, the appeal would not be maintainable.

Factual Determination by the Tribunal
The High Court, not being apprised of the factual matrix regarding the signatory to the memorandum of appeal, directed the Tribunal to determine this issue. Upon examination, it was found that several appeals were preferred under Section 35B of the Central Excise Act, 1944, by the Superintendent (Appeals), Central Excise & Customs, Surat-I. As the appeals were signed and presented by the Superintendent and not the Commissioner, they were deemed misconceived and rejected in line with the High Court's judgment. The appeals were rejected without costs, based on the factual determination that the Superintendent was the signatory to the appeal documents.

In conclusion, the Appellate Tribunal held that appeals under Section 35E of the Central Excise Act, 1944, signed and presented by the Superintendent (Appeals), Central Excise & Customs, Surat-I, were not maintainable, as per the decisions of the Larger Bench and the High Court of Gujarat. The factual determination revealed that the appeals were misconceived due to the Superintendent signing and presenting them instead of the Commissioner, leading to their rejection in line with the High Court's ruling.