2013 (6) TMI 537 - AT - Service Tax

Revenue appeal - condonation of delay in filing an appeal - clearance from committee of commissioners - Held that - since the Chief Commissioner (DZ) and Chief Commissioner (CZ) merely appended their signatures on 14.07.2012 and 23.07.2012 to the respective note sheets and memorandum of facts and analysis, drawn up by the respective subordinate officers and the record neither records nor discloses due application of mind, the authorisation to prefer the appeal is unsustainable. We note that the Board has issued a memorandum of instructions dated 23.11.2012 pointing out that the notes in the file and other relevant records should disclose meaningful consideration and application of mind by the committee. As a consequence of the unsustainable authorisation, the appeal must fail and is accordingly dismissed. Since the appeal is dismissed on the ground of defective authorisation by the committee of Chief Commissioners, we dismiss the CoD application No. 2955 of 2012 as infructuous, though we are satisfied prima facie that satisfactory cause exists for condonation of the delay of three days in preferring the appeal. - Decided against the revenue.

Issues Involved:
1. Validity of the review order signed by the Chief Commissioners on different dates.
2. Requirement of a joint meeting for the formation of an opinion by the Committee of Chief Commissioners.
3. Application of mind by the Chief Commissioners in authorizing the appeal.
4. Compliance with Section 86(2) of the Finance Act, 1994.

Detailed Analysis:

1. Validity of the Review Order Signed by the Chief Commissioners on Different Dates:
The respondent/assessee contended that the review order authorizing the filing of an appeal by Revenue was invalid since the order was signed by the two Chief Commissioners on different dates (14.07.2012 and 23.07.2012). It was argued that the formation of an opinion was not arrived at in a joint meeting but separately by the two Chief Commissioners, which allegedly violated the procedural discipline mandated by Section 86(2) of the Finance Act, 1994.

2. Requirement of a Joint Meeting for the Formation of an Opinion by the Committee of Chief Commissioners:
The tribunal examined whether Section 86(2) of the Act necessitates a joint meeting of the Chief Commissioners to form an opinion. It was concluded that the provision does not explicitly require a joint meeting. The tribunal emphasized that what is required is the independent application of mind by each Chief Commissioner to the relevant parameters of the decision, namely that the adjudication order was in error and that it is a fit case for preferring an appeal to the Tribunal. Precedents such as the Karnataka High Court's decision in Commissioner vs. ITC Ltd. and the Delhi High Court's decision in Commissioner of Central Excise, Delhi-I vs. Kundalia Industries were considered, which supported the view that a joint meeting is not mandatory.

3. Application of Mind by the Chief Commissioners in Authorizing the Appeal:
The tribunal scrutinized whether the Chief Commissioners had applied their minds independently to the decision to file an appeal. The records revealed that the Chief Commissioners merely appended their signatures to the notes prepared by subordinate officers without indicating independent consideration of the relevant issues. This mechanical signing was deemed insufficient to constitute due application of mind. The tribunal referred to the Delhi High Court's ruling in Kundalia Industries, which held that mere appending of signatures without meaningful consideration does not comply with the statutory obligation.

4. Compliance with Section 86(2) of the Finance Act, 1994:
The tribunal analyzed Section 86(2) and similar provisions in the Central Excise Act, 1944, and the Customs Act, 1962, which confer discretion on a committee of specified officers to consider the desirability of preferring an appeal. The tribunal concluded that the decision to appeal must be preceded by due application of mind by the Committee of Chief Commissioners. The tribunal found that the authorisation by the Chief Commissioners in the present case was unsustainable due to the lack of independent application of mind, as the Chief Commissioners merely signed the notes prepared by subordinates.

Conclusion:
The appeal was dismissed on the grounds of defective authorization by the committee of Chief Commissioners, as the authorization lacked due application of mind. Consequently, the application for condonation of delay was also dismissed as infructuous. The tribunal emphasized the importance of meaningful consideration and application of mind by the committee, as highlighted in the Board's memorandum of instructions dated 23.11.2012.

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