2006 (6) TMI 69 - AT - Central Excise

Sec. 35B(2) clears that formation of an opinion is one act filing appeal at the subsequent stage after formation of such an opinion is a different act - subsequent act cannot rectify the infirmity of the first act as both acts are performed by two different authorities - Since commissioner has powers to authorize other official to file appeal on his behalf, he himself can t file the appeal - hence impugned appeal is not in compliance to sec. 35B(2) so it is non-maintainable appeal dismissed

Summary

Issues:
1. Preliminary objection raised regarding the maintainability of the appeal filed by the Commissioner.
2. Interpretation of Section 35B(2) of the Central Excise Act, 1944.
3. Whether the Commissioner can file the appeal himself or must authorize another official to do so.

Analysis:

Issue 1: Preliminary Objection on Maintainability
The appeal was filed by the Commissioner under Section 35B of the Central Excise Act, 1944 against the order passed by the lower appellate authority. The preliminary objection raised was that the Commissioner did not explicitly state in the appeal that the order passed by the lower authority was not legal or proper. The Tribunal noted that the Commissioner had indeed formed an opinion that the order was not legal or proper based on the detailed appeal filed, which addressed each issue and provided reasons supported by case laws. The Tribunal rejected the preliminary objection and scheduled the appeal for a hearing on its merits.

Issue 2: Interpretation of Section 35B(2)
The Tribunal analyzed Section 35B(2) of the Central Excise Act, 1944, which required the Commissioner to form an opinion that the order of the Commissioner (Appeals) was not legal or proper before directing an appeal to be filed. The Tribunal emphasized that the formation of such an opinion was crucial for the appeal's maintainability. It was established that the Commissioner had indeed formed a clear opinion based on the detailed appeal filed, which highlighted the legal and proper issues with the lower appellate authority's order.

Issue 3: Commissioner Filing the Appeal
There was a difference of opinion between the Member (Technical) and Member (Judicial) regarding whether the Commissioner could file the appeal himself or needed to authorize another official. The Member (Technical) believed that the Commissioner could file the appeal, while the Member (Judicial) disagreed, citing the specific requirements of Section 35B(2). The Tribunal ultimately dismissed the appeal as not maintainable, concurring with the view that the Commissioner filing the appeal himself did not align with the provisions of the law.

In conclusion, the Tribunal's detailed analysis highlighted the importance of the Commissioner forming a clear opinion on the legality and propriety of the lower appellate authority's order before filing an appeal. The interpretation of Section 35B(2) was crucial in determining the appeal's maintainability, ultimately leading to the dismissal of the appeal due to the Commissioner filing it himself without meeting the prescribed requirements.