2009 (12) TMI 37 - HC - Customs

Defect in appeal by revenue while dismissing the revenue appeal tribunal observed that We have gone through the record on hearing from both the sides. We do not find any authorisation of the Committee to seek appeal remedy by the Revenue. We noticed that the law requiring a Committee to authorise an appeal to be filed came into force on 31.3.2005. It appears that the Revenue has made a very casual approach to cure the defect when there is law declared by Hon ble High Court of Karnataka in the aforesaid case in the year 2007. Such an attitude of Revenue is not appreciable to allow further time when they know very well the law which permits to cure defect. Therefore we dismiss the appeal with an impression that Revenue has made very casual approach held that - A perusal of the file shows that the Revenue has proceeded on the premises that on 2.2.2009 it has been given time to cure the defect by 9.2.2009 as the next date fixed is 18.2.2009 . The aforesaid premise is factually incorrect as the appeals were dismissed vide order dated 2.2.2009 - In any case once the fundamental element of formation of opinion of filing the appeal is missing then no appeal is deemed to be instituted in the eyes of law - Ordinarily we do not non suit the Revenue for a procedural lapse but this case is of such a nature that lapses one after the other have been committed. Therefore the appeals are wholly without merit and are liable to be dismissed.

Summary

Issues: Appeal under Section 130(1) of Customs Act, 1962; Lack of authorization by the Committee for filing appeal; Ex post facto authorization plea; Procedural lapses leading to dismissal of appeals.

Analysis:
1. Appeal under Section 130(1) of Customs Act, 1962:
The judgment deals with two appeals directed against a common order passed by the Tribunal. The appellant claimed that a substantive question of law arose from the Tribunal's order. The Tribunal refused to entertain the appeal citing lack of authorization by the Committee to seek the remedy of appeal to be filed by the Revenue. The Tribunal emphasized the necessity of authorization, as per the law in force since 31.3.2005, and dismissed the appeals due to the absence of such authorization.

2. Lack of authorization by the Committee for filing appeal:
The Tribunal's decision was based on the absence of explicit authorization by the Committee to file the appeals. The record revealed that while a note suggested appealing against the Commissioner (Appeals) order, there was no formal decision by the Committee on record. The Tribunal highlighted that without an order of authorization, the appeal was not competent under Section 129 A of the Act, which requires the Committee's evaluation and formation of opinion before filing an appeal.

3. Ex post facto authorization plea:
The Revenue argued that an authorization order was passed after the dismissal of the appeals, which could be considered ex post facto authorization. However, the Court found this argument lacking as no such ground was raised in the initial appeal, and the defect could not be rectified post-dismissal. The Court emphasized that the fundamental element of forming an opinion for filing the appeal was missing, making the appeals legally insufficient.

4. Procedural lapses leading to dismissal of appeals:
Despite acknowledging procedural lapses, the Court concluded that the appeals were without merit due to successive lapses committed by the Revenue. The Court highlighted that once the appeal's fundamental element was missing, no appeal could be deemed instituted. While the Court generally avoids non-suiting the Revenue for procedural lapses, the nature and extent of the lapses in this case led to the dismissal of the appeals.

In conclusion, the Court dismissed both appeals due to the lack of authorization by the Committee for filing the appeals, emphasizing the importance of complying with procedural requirements under the Customs Act, 1962.