2013 (10) TMI 1272 - AT - Service Tax

Maintainability of appeal Non application of mind - Held that - No opinion is formed by the Committee of Commissioners about the illegality of the order as required under Section 35B of the Central Excise Act - There was no authorization by the Committee of Commissioners to file appeal on its behalf - record also does not disclose that these two officers applied their mind to the issue and recorded any opinion, as per the requirement of Section 35B of the Central Excise Act that the order of the Commissioner (A) was not legal or proper and warranted to be challenged by filing an appeal - there should be a meaningful consideration which should be reflected on the note sheets in order to comply with the requirement of Section 35(2) of the Act - file does not show any such satisfaction or opinion having been recorded by the Committee of Commissioners. Mere signing on draft note mechanically does not constitute sufficient compliance with the requirement of application of mind by the Commissioners comprising the Committee, to the Twin requirements of the decision making process namely, due consideration of the material pertaining to the adjudication/appellate order and the appropriateness/desirability of preferring an appeal - Decided against Revenue.

Summary

Issues:
1. Maintainability of the appeal due to lack of proper application of mind by the Committee of Chief Commissioners.

Analysis:
The appeal in question was filed by the Revenue against an adjudication order, albeit with a delay of 6 days. The respondent/assessee raised a preliminary objection regarding the maintainability of the appeal, contending that there was a lack of proper application of mind by the Committee of Chief Commissioners in deciding to file the appeal before the Tribunal. The respondent argued that the Chief Commissioners merely signed on the draft review notes prepared by sub-ordinate officers without demonstrating a genuine consideration of the material and the appropriateness of filing an appeal.

Upon review of the original record pertaining to the decision-making process of the Committee of Chief Commissioners, it was revealed that the Chief Commissioners of both Delhi and Chandigarh Zones had merely appended their signatures to the recommendation for review without indicating a thorough consideration of the proposals. This lack of genuine application of mind by the Chief Commissioners was highlighted as a critical issue in the appeal's maintainability.

The Tribunal referred to a previous decision by a Division Bench in a similar matter, emphasizing the importance of the Commissioners comprising the Committee genuinely considering the material related to the adjudication/appellate order and assessing the appropriateness of filing an appeal. The Tribunal reiterated that mere mechanical signing of draft notes does not fulfill the requirement of proper application of mind in the decision-making process.

Ultimately, the Tribunal found that the decision to review and prefer an appeal made by the Committee of Chief Commissioners in this case did not meet the standards set out in previous judgments. Consequently, the appeal was deemed defective and rejected on the grounds of insufficient application of mind by the Committee of Chief Commissioners.