2008 (11) TMI 67 - HC - Central Excise

Maintainability of appeal - Whether the Commissioner who is directed by CBEC to file appeal, can validly authorize the Superintendent to present such appeal to the Tribunal Division Bench and LB of CESTAT are not justified in equating the terms file and present held that any person can physically present the application without authorization therefore tribunal is not justified in placing emphasis on presentation by Superintendent and hence dismissing the appeal

Summary

Issues:
1. Interpretation of provisions of Section 35E(1) of the Central Excise Act, 1944 regarding the authority to file an appeal before the Appellate Tribunal.
2. Validity of authorizing a Superintendent to present an appeal before the Tribunal under Section 35E(1) of the Act.
3. Determining the maintainability of an appeal filed by a Superintendent instead of the Commissioner as directed by the Central Board of Excise and Customs.

Analysis:
1. The case involved a show cause notice issued by the Commissioner of Central Excise & Customs to the respondent-assessee, which was later dropped. The Central Board of Excise and Customs directed the Commissioner to apply to the Appellate Tribunal under Section 35E(1) of the Act. The Tribunal referred the question of authorizing a Superintendent to file the appeal, leading to a Larger Bench decision that emphasized the Commissioner's role in filing substantive appeals.

2. The Tribunal held that the Commissioner cannot validly authorize a Superintendent to present such an application, and the appeal would not be maintainable in such a scenario. The Tribunal erred in equating the terms "file" and "present" an appeal, failing to recognize their distinct legal implications. The Commissioner's role as the applicant under Section 35E(1) was crucial, and the physical presentation of the application by any authorized person was deemed irrelevant.

3. The Tribunal's reliance on Section 35E(4) was misplaced, as it only applies after the application is received by the Tribunal's Registry. The Tribunal misinterpreted the provisions and failed to differentiate between the application under Section 35E(1) and an appeal for substantive rights. The Commissioner's authorization of a Superintendent to file the appeal was a key contention, with the Tribunal neglecting to verify the actual applicant and wrongly assuming the Commissioner's powers under Section 35E(2) could be used in this context.

4. The Tribunal was directed to reconsider the appeal, ensuring the correct applicant is identified. If the Commissioner did not file the application, it would be deemed not maintainable. However, if the Commissioner was the applicant but someone else presented the application, the Tribunal was instructed to proceed with the merits of the appeal. The judgment concluded by disposing of the appeal without costs, emphasizing the importance of correctly identifying the authorized applicant for filing appeals under Section 35E(1) of the Act.