2008 (8) TMI 35 - AT - Central Excise

Appeal has been filed by revenue with an authorization signed by the Commissioner during the relevant period as per amended provision u/s 35B(2), Commissioner did not have the power to review the order passed by the lower appellate authority or to authorize for filing of appeal hence as per amended provision, revenue require authorization from Committee of Commissioners, not from Commissioner hence review and authorization is dismissed

Summary

Issues: Jurisdictional authority to file appeal post-amendment; Validity of authorization under Section 35B(2) post-amendment; Lack of provision for transitional cases; Observations on procedural changes and need for advance notice; Recommendation for review power by Chief Commissioner; Amendment suggestion for Section 35B(2) terminology.

In this case, the Appellate Tribunal CESTAT, Kolkata addressed the issue of jurisdictional authority to file an appeal post-amendment of Section 35B(2) of the Central Excise Act, 1944. The lower appellate authority had set aside the order-in-original and allowed the appeal of the respondents, leading to an appeal filed by the Assistant Commissioner against this decision. The respondent's consultant raised a preliminary objection that the amended law post-13-5-05 did not empower the Commissioner to review or authorize an appeal against the lower appellate authority's order. The department's representative argued that the amendment was procedural and the appeal should be heard on merit. The Tribunal noted the changes in the law, highlighting that only the Committee of Commissioners could direct an appeal post-amendment. The lack of provision for transitional cases arising before the amendment was also acknowledged.

The Tribunal scrutinized an authorization issued by the Commissioner post-amendment, where the Commissioner had incorrectly invoked powers under Section 35B(2) without considering the amended provisions. It was emphasized that the Commissioner had acted beyond his jurisdiction by not adhering to the amended legal framework. Consequently, the Tribunal dismissed the appeal filed based on this unauthorized authorization without delving into the case's merits. The Tribunal urged officials to meticulously review legal provisions and stay updated with amendments to prevent jeopardizing public revenue. They advocated for adequate notice on procedural changes to ensure awareness among stakeholders, proposing legal measures to address transitional cases effectively.

Furthermore, the Tribunal recommended that the power to review orders passed by the Commissioner (Appeals) should rest with the jurisdictional Chief Commissioner rather than a Committee of Commissioners, suggesting a legislative change. They also suggested amending Section 35B(2) to replace the pronoun "him" with "it" to accurately refer to the Committee of Commissioners. The judgment concluded with the dismissal of the appeal along with the aforementioned observations and recommendations, emphasizing the need for adherence to legal provisions and proactive measures to safeguard public revenue and ensure procedural fairness.