2007 (10) TMI 97 - HC - Central Excise

Appeal by Dept. Defects in authorization to file appeal is curable defect so appeal by dept is maintainable Tribunal is not justified to reject the appeal of dept. on ground that second authorization was not granted by the very same officers if there are changed in the committee members

Summary

Issues:
Appeal for final disposal by consent of parties; Dismissal of appeal by Tribunal on grounds of representation by unauthorized officer and improper authorization granted by Commissioner of Central Excise.

Analysis:
The appeal in question was brought by the revenue against a decision regarding a refund application made by the respondent-assessee, a cigarette manufacturer. The assessment finalized in 2002 revealed an excess payment by the assessee, leading to a refund claim. However, the Assistant Commissioner ordered the amount to be credited to the Consumer Welfare Fund, prompting the assessee to appeal. The Commissioner of Central Excise (Appeals) allowed the appeal in 2005, leading to the revenue's appeal to the CESTAT, which was dismissed in 2006 on grounds of improper representation and authorization.

The primary issue before the High Court was the justification of the Tribunal's decision to dismiss the revenue's appeal due to improper representation and authorization. The Court noted that the appeal was filed by the Committee of Commissioners instead of an authorized officer as required by the Central Excise Act. However, the Court deemed this defect as curable and not fatal. It emphasized that if an application is made to correct such a defect, the Tribunal should consider and permit the appellant to rectify it. Therefore, the Court found the Tribunal's dismissal of the appeal on this ground to be erroneous.

Regarding the authorization granted on 16-6-2005 by the Commissioner of Central Excise, Bangalore, the Court examined the issue of multiple authorizations by different committees. The Court held that if there are changes in committee members, the present incumbents are obligated to grant authorization. As the Tribunal did not claim that the committee granting authorization was incompetent, the Court criticized the Tribunal for being hyper-technical in dismissing the appeal based on this issue. Consequently, the Court set aside the Tribunal's order and remanded the matter for fresh consideration, directing the Tribunal to allow the appellant to rectify any defects and proceed in accordance with the law.