2008 (4) TMI 183 - AT - Central Excise

Appeal by Revenue - Respondent raised preliminary objection that there is no opinion formed by Committee of Commissioners to file appeal and also there is no authorization by the Committee to file appeal as per the requirement of Section 35B(2) revenue submitted that requirement of authorization for filing of appeal may be waived Respondent s objection is correct revenue submission not accepted condition for authorization by Committee for filing the appeal cannot be waived

Summary

Issues:
1. Lack of opinion formed by Committee of Commissioners to file appeal.
2. Absence of authorization by the Committee of Commissioners to file appeal as per Section 35B(2) of Central Excise Act.

Analysis:

Issue 1: Lack of opinion formed by Committee of Commissioners to file appeal
The appeal was filed by the Revenue against the order-in-appeal passed by the Commissioner (Appeals). The respondent raised a preliminary objection, stating that there was no opinion formed by the Committee of Commissioners to file the appeal, as required by Section 35B(2) of the Central Excise Act. In response, the Revenue filed a Misc. application to place on record the proceedings before the Committee of Commissioners, seeking a waiver of the authorization requirement for filing the appeal. However, upon examination of the proceedings, it was found that the Committee did not form an opinion regarding the legality of the order in question, as mandated by the Act. The Tribunal noted that the provision clearly states that the opinion must be formed by the Committee of Commissioners to authorize the excise officer to file the appeal.

Issue 2: Absence of authorization by the Committee of Commissioners
The Revenue argued that the proposal for filing the appeal was signed by the members of the Committee of Commissioners, indicating their agreement with the appeal. Additionally, it was contended that since the appeal was filed by the Commissioner of Central Excise, who is a member of the Committee, the requirement of authorization should be dispensed with. However, the Tribunal emphasized that the Act specifically requires the Committee of Commissioners to authorize the excise officer to file the appeal on its behalf. The Tribunal cited previous decisions where appeals were dismissed due to the lack of opinion by the Committee of Commissioners and the absence of proper authorization for filing the appeal.

In conclusion, the Tribunal found merit in the respondent's contention that the appeal should be dismissed due to the failure to meet the statutory requirements of forming an opinion by the Committee of Commissioners and obtaining proper authorization for filing the appeal. The Tribunal upheld the respondent's objection and dismissed the appeal filed by the Revenue.