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2009 (4) TMI 146 - AT - Central ExciseDefect in filing an appeal by revenue rectification of mistake curable nature of defect held that - If such a mistake were to be there and if an application is filed by the appellant to correct such defect and it is for the Tribunal to consider the same properly and permit the appellant to cure the defect in the appeal memo - It is a case of mere delay on the part of the Department to place the relevant documents on record and the same is sought to be cured by the present applications. It is true that there is a reiteration of the earlier decision by the Committee of Commissioners in February 2009 - nearly three years have lapsed from the date of the filing of appeal and it took three years for Department to place on record the relevant documents - undisputedly the appeal has been filed by the Commissioner, Central Excise, Delhi-III. Being so only defect, if any, which have to be cured was to place on record the relevant document in that regard and that is what is sought to be done by the appellant by the present application removal of defect allowed.
Issues Involved:
1. Compliance with Section 35B(2) of the Central Excise Act, 1944. 2. Formation of opinion by the Committee of Commissioners. 3. Authorization to file the appeal. 4. Timeliness and procedural delays. Issue-wise Detailed Analysis: 1. Compliance with Section 35B(2) of the Central Excise Act, 1944: The appellants filed appeals based on the decision of the Committee of Commissioners under Section 35B(2) of the Central Excise Act, 1944. The respondent argued that compliance with Section 35B(2) is not a mere formality and requires a formal meeting to consider the order passed by the Commissioner (Appeals) and form an opinion on whether the order is legal and proper. The Tribunal clarified that Section 35B(2) does not mandate a meeting and that the opinion can be formed by circulating relevant papers among the Committee members. The Tribunal found that the note sheet prepared in August 2006 disclosed the formation of such an opinion, thereby complying with Section 35B(2). 2. Formation of Opinion by the Committee of Commissioners: The appellants contended that the opinion to file the appeal was formed by the Committee of Commissioners as indicated in the note sheet dated 23-8-2006, with endorsements by the Commissioners of Central Excise, Delhi-III, and Rohtak. The Tribunal supported this by stating that the law does not require a detailed order for opinion formation, and the note sheet clearly indicated the formation of an opinion to file the appeal. The Tribunal dismissed the respondent's argument that there was no opinion formed, as the records showed otherwise. 3. Authorization to File the Appeal: The respondent argued that the appeal was not maintainable due to the absence of proper authorization under Section 35B(2). The Tribunal examined the note sheet and found that the Commissioner, Central Excise, Delhi-III, was authorized to file the appeal. The decision in February 2009 reiterated this authorization. The Tribunal referenced the Karnataka High Court's decision in I.T.C. Limited, which held that such defects are curable and not fatal, thus supporting the appellants' position. 4. Timeliness and Procedural Delays: The respondent highlighted the delay of nearly three years in placing the relevant documents on record. The Tribunal acknowledged this delay but found no manipulation or effort to fill gaps in the records. The Tribunal emphasized that the delay was in placing documents on record, not in the formation of the opinion or authorization. Therefore, the Tribunal allowed the appellants to cure the technical defect by placing the necessary documents on record. Conclusion: The Tribunal concluded that the appellants had complied with Section 35B(2) by forming an opinion and authorizing the Commissioner, Central Excise, Delhi-III, to file the appeal. The Tribunal allowed the appellants to place the relevant documents on record to cure the procedural defect and dismissed the request for early hearing. The miscellaneous applications were disposed of accordingly.
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