2020 (3) TMI 522 - AT - Central Excise

Jurisdiction - proper authority to sign the application - verification of application - case of Revenue is that the application for condonation of delay has been signed by Commissioner, Central Goods and Services Tax, Bhavnagar, who was not authorized by the Committee of Commissioners that had originally authorized to file the appeal - HELD THAT - The perusal of Rule 8 of the CESTAT (Procedure) Rules, shows that it clearly permits the appellant to verify the application. The Rule clearly permits appeal/application/cross-objection shall be signed and verified by the appellant/applicant/respondent of the Principal Officer duly authorised to sign Memorandum of Appeal/application/Cross-objection. The appellant and respondent can verify the application. In the instant case, the Commissioner is appellant and he has filed the appeal. Consequently, the words duly authorized appearing in Rule 8 do not refer to authorization under Section 35B(2) for the reason that there is no mention of the said Section in the said Rule. The authorization referred to in Rule 8 is a normal authorization done by appellant or respondent as the said Rule applies not only to Revenue also but to the assessees. Thus, the words duly authorized appearing in Rule 8 are not with reference to Section 35B(2). In the instant case, the appeal was filed within time and there was only delay in rectification of defect pointed out by the Registry. Even otherwise, the primary objection of the Ld. Counsel for the respondent regarding the condonation of delay application being signed by an officer not authorized by Committee of Commissioners is misplaced as the requirement of filing of appeal under Section 35B is only for filing the appeals and not for other miscellaneous applications - Since there is no delay in filing the appeal, the applications for condonation of delay are dismissed as infructuous. Appeals admitted.

Issues Involved:

1. Authorization to file the application for condonation of delay.
2. Timeliness of filing the appeal.
3. Correctness of the authorization for filing the appeal.
4. Technical defects in the filing process.

Issue-wise Detailed Analysis:

1. Authorization to file the application for condonation of delay:

The respondent's counsel argued that the application for condonation of delay was signed by the Commissioner, Central GST, Bhavnagar, who was not authorized by the Committee of Commissioners. The Committee had authorized only the Assistant Commissioner, Service Tax Division, Bhavnagar, to file the appeal. The counsel relied on the decision of the Hon'ble High Court of Orissa in the case of CCE & ST, Bhubneshwar v. Ballarpur Industries Limited, asserting that this defect is incurable. The Tribunal, however, noted that the authorization to file the appeal was correctly given and the defect related only to the condonation of delay application, which is not subject to the same stringent authorization requirements.

2. Timeliness of filing the appeal:

The Revenue's AR pointed out that the impugned order was received by the Commissioner on 28-11-2014, and the authorization was issued on 4-3-2015. The appeal was filed on 24-3-2015, within the prescribed four-month time limit. The Tribunal found that the appeal was indeed filed within the prescribed period, and any delay pertained only to the rectification of technical defects pointed out later.

3. Correctness of the authorization for filing the appeal:

The Tribunal examined Section 35B of the Central Excise Act, 1944, which requires that an appeal be filed by an authorized officer. The Tribunal found that the initial appeal was filed with proper authorization from the Committee of Commissioners, and the subsequent applications for condonation of delay were correctly signed by the Commissioner, Central GST, Bhavnagar. The Tribunal noted that the requirement for authorization under Section 35B(2) applies to filing the appeal and not to miscellaneous applications such as condonation of delay.

4. Technical defects in the filing process:

The Assistant Registrar, CESTAT, issued a defect memo on 26-3-2015, requiring the Revenue to file two additional appeals, as the impugned order dealt with three different orders-in-original. The Revenue complied by filing the additional appeals on 17-4-2015, within the time limit prescribed by the Assistant Registrar. The Tribunal found that the delay was only in rectifying the technical defect and not in the initial filing of the appeal.

Conclusion:

The Tribunal concluded that there was no delay in filing the appeal and that the defect pointed out was of a technical nature, which was rectified within the prescribed period. The applications for condonation of delay were dismissed as infructuous, and the appeals were admitted. The Tribunal emphasized that the requirement for authorization under Section 35B(2) applies to the filing of appeals and not to miscellaneous applications, thereby rejecting the preliminary objection raised by the respondent's counsel.

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