APPEAL BY CENTRAL EXCISE DEPARTMENT

[Mr. M. GOVINDARAJAN]

Sec. 86 of the Finance Act, 1994 provides appeals to appellate tribunal.   Any assessee aggrieved by an order passed by a Commissioner of Central Excise under Sec. 73 or Sec. 83A or Sec. 84 or an order passed by a Commissioner of Central Excise (Appeals) under Sec. 85 may appeal to the Appellate Tribunal against such order.

The Department may also file appeal against the order of Commissioner (Appeals) before the Appellate Tribunal. For filing such appeal certain procedure as laid down in the Act is to be followed by the Department. Otherwise the appeal filed by the Department will not be entertained by the Appellate Tribunal.

The Board may, with effect from 11.5.2007, by Notification in the Official Gazette, constitute such committees as may be necessary for the purpose.  Every such committee shall consist of two Chief Commissioners of Central Excise or two Commissioners of Central Excise as the case may be.   The Committee of Chief Commissions of Central Excise may, if it objects to any order passed by the Commissioner of Central Excise under Sec. 73 or Section 83A or Sec. 84 direct the Commissioner of Central Excise to appeal to the Appellate Tribunal against the order.  Where the Committee of Chief Commissioners of Central Excise differs in its opinion against the order of the Commissioner of Central Excise, it shall state the point or points on which it differs and make a reference to the Board which shall, after considering the facts of the order, if it is of the opinion that the order passed by the Commissioner of Central Excise is not legal and proper, direct the Commissioner of Central Excise to appeal to the Appellate Tribunal against the order.

The Committee of Commissioners may, if it objects to any order passed by the Commissioner of Central Excise (Appeals) under Sec. 85, direct any Central Excise Officer to appeal on its behalf to the Appellate Tribunal against the order. Where the Committee of Chief Commissioners of Central Excise differs in its opinion against the order of the Commissioner of Central Excise, it shall state the point or points on which it differs and make a reference to the Board which shall, after considering the facts of the order, if it is of the opinion that the order passed by the Commissioner of Central Excise (Appeals) is not legal and proper, direct the Commissioner of Central Excise to appeal to the Appellate Tribunal against the order.

The appeal should be filed within three months from the date on which the order sought to be appealed is received by the Committee of Chief Commissioners or the Committee of Commissioners, as the case may be. The Department is to file appeal to the Appellate Tribunal in Form ST - 7 in quadruplicate including-

Four copies of the order of Commissioner of Central Excise (Appeals) (including certified copy) along with a copy of the order passed by the Board

- directing the Commissioner of Central Excise to apply to Appellate Tribunal in case the appeal is filed under Sec.86(2);

- directing the Asst/Deputy Commissioner to apply to Appellate Tribunal in case the appeal is filed under Sec. 86(2A);

The Appellate tribunal may admit an appeal after the expiry of the period of three months, if it is satisfied that there was a sufficient cause for not presenting it within the said period.   No fee is payable for the department to file appeal.

Similar provisions are also available in the Central Excise Act for filing appeal by the Department under Sec. 35E of the Central Excise Act.

Six case laws are given below in which different issues are involved in filing the appeal by the Department.

Commissioner of Central Excise, Customs & Service Tax, BBSR - I V. Sanfin - 2009 (13) STR 551 (Tri.Del)

In the appeal filed by the Revenue, the respondents take a preliminary objection that Sec. 86(2A) of the Finance Act, 1994 has been amended with effect from 11.05.2007 under which only a Committee of Commissioners can authorize filing appeal against an order passed by the Commissioner (Appeals). The appeal has been filed on 14.05.2007 on the authorization by the jurisdictional Commissioner and hence the appeal is not maintainable. The tribunal on examination finds-

„X the impugned order-in-appeal was passed on 14.2.2007;

„X the same was dispatched on19.2.2007 and received on 28.2.2007;

„X the authorization to file appeal against the same has been signed by the jurisdictional Commissioner on 10.04.2007;

„X the Appeal papers including the verification clauses have been signed by the authorized officer on 04.05.2007 and the same have been dispatched by Speed Post on 08.05.2007;

As such the process of filing appeal as well as dispatch of the same by Speed post has been completed on 08.05.2007 before the amendment to Sec. 86(A2) of the Finance Act, 1994.  Hence the appeal is maintainable.

Commissioner of Central Excise & Service Tax, Jamshedpur V. TRF Limited - 2008 -TMI - 32648 - (CESTAT, KOLKATA)

Unless a person is appointed by a Notification in the Official Gazette he cannot be deemed to have been vested with the statutory powers to act as a Chief Commissioner of the Central Excise under the Central Excise law. Consequently such a person cannot also exercise the powers under the Finance Act, 1994 in dealing service tax matters, as such powers are exercisable only by a person appointed as Chief Commissioner of Central Excise in the manner known to the Law. In the present case the Department has not produced any Notification published in the Official Gazette appointing Chief Commissioner of Central Excise.

The tribunal held that the same has no option but to hold that the discretion to file the present appeal has been issued without having the necessary statutory power and jurisdiction and the same is, therefore, non est in the yes of law. Consequently the appeal filed pursuant to such direction is not maintainable and the same is rejected at the threshold without going into the merits of the case.

Commissioner of Central Excise, Chennai V. Dollar & Co (P) Ltd., - 2006 -TMI - 32180 - (CESTAT CHENNAI)

The application for condonation of delay states that after the receipt of the impugned order, the appellant wanted to retrieve the relevant invoices. The appellant approached the assessee who reported that the invoices had been irretrievable lost in floods.   The assessee however produced two invoices, which was not to the satisfaction of the appellant. The appellant went in search of more invoices and ultimately received copies of a few invoices from the assessee's dealers. Therefore the appeal was filed with a delay of 90 days. According to the appellant the delay is due to the non co-operation on the part of the assessee with an intention to evade payment of duty.

The tribunal held that the appellant chose to venture into further investigation which is unknown to the law, the plea of 'non co-operation of the assessee' cannot be accepted. There is no room for the assessee to co-operate with the department in the matter of filing an appeal by the later. There is no attempt to explain the delay. The tribunal dismissed the application; consequently the appeal also gets dismissed.

Commissioner of Central Excise & Customs, Surat - II V. Siddarth Petro Products Ltd., - 2009 (13) STR 18 (Guj)

A show cause notice was issued to the respondent assessee. After considering the reply the Commissioner dropped the proceedings. The Board by issue of power given to it under Sec. 35E(1) of the Central Excise Act called for the record of the proceedings and directed the Commissioner to apply to the Appellate Tribunal for determining such points arising out of the decision or order of the Commissioner as was specified by the Board. The application was presented before the tribunal.  The tribunal felt that there was a conflict of opinion rendered by the various benches of the tribunal and hence, reference was made to a Larger Bench on the following question:

"Can the Commissioner who is directed by the Central Board of Excise & Customs to file appeal under Sec. 35E(1) read with Sec. 35E(4) of the Central Excise Act, 1944, validly authorize to Superintendent (Appeals), Central Excise & Customs to present such application to the Appellate Tribunal, and, will the appeal so filed be maintainable or not?"

The Larger Bench held that 'In this case, it is not a question of mere presentation of an appeal. The appeals have been filed by a Superintendent (Appeals) and filing of an appeal is certainly cannot be a ministerial function, but a substantive function, which cannot be further delegated to any other officer by the Commissioner, who is the Officer to whom a direction was given by the Board under Sec. 35E(1).

On the basis of the reference the tribunal dismissed the appeal as not maintainable. Appeal was filed by the Department before High Court. The High Court held that the procedural requirement of registering an appeal, hearing of an appeal, right to file cross objection, disposal of the appeal etc., and the provisions dealing with these requirements are by implication incorporated in the present Section by virtue of Sec. 35E(1). But from that the application made under Sec. 35E(1) cannot be equated to an appeal for the purposes of a substantive right. Neither sub section (1) nor sub section (2) of Sec. 35E of the Act in fact use the terms 'file' or 'present', the only requirement being that the Commissioner should apply to the Appellate Tribunal for determination of the points specified by the Board in its order. The tribunal was therefore, required to ascertain and verify from its own record as to who was the applicant, the signatory of the application and not concerned with who physically/actually presented the papers of the application.

Commissioner of Central Excise V. Fibre Glass Fabrication - 20009 (13) 273 (Tri.Kolkatta)

Different practices/formats followed in different Commissionarates for giving authorization for filing appeal to CESTAT. Mere statement that order is appealable is not sufficient. Reasons or opinion for considering impugned orders are not valid and proper absent in authorization. Impugned authorization are not valid and appeal filed pursuant there to is not maintainable.

Commissioner of Central Excise, Bangalore - II V. ITC Limited - 2009 (13) STR 333 (Kar)

The Committee of Commissioners has filed the appeal for revenue instead of appeal being filed through the authorized officer, as required under the Central Excise Act. The High Court held that such defect is a curable defect and not fatal to the Revenue. If such a mistake were to be there and if an application is filed by the appellant to correct such defect, it is for the tribunal to consider the same properly and permit the appellant to cure the defect in the appeal memo.