2015 (1) TMI 1050 - AT - Service Tax

Maintainability of appeal - argument that there has been non-application of mind by the Committee of Chief Commissioners - Non compliance of provision of Section 86(2) of the Finance Act 1994 - Held that - A careful analysis of the sub-section (2) of Section 35B of CEA 1944 it is amply clear that if in the opinion of the Committee of Chief Commissioners that the order is not legal and proper it may direct for filing appeal against the order. The said provision was inserted into the Central Excise Act 1944 w.e.f. 13-5-2005. Now referring to the provisions contained in Section 86(2) of Finance Act 1994 relating to filing of appeal under the said Act the difference is apparent as pointed out by the ld. Spl. Counsel for the Revenue. In Section 86(2) it is laid down that the Committee of Chief Commissioners if objects to the order passed by the Commissioner may direct the Commissioner to file appeal against the said order. In the present case we find that members of Committee of Chief Commissioners sitting at different places accepted and agreed to the analysis of the lower formation and recorded their objection against the said order and directed the Commissioner for filing of the appeal before the Tribunal. Thus in our opinion there is sufficient compliance of the provisions of Section 86(2) of Finance Act 1994. - appeals filed by the Revenue-Appellant are maintainable being filed in accordance with the procedure prescribed under Section 86(2) of the Finance Act 1994. - Decided in favour of Revenue.

Summary

Issues Involved:
1. Maintainability of the appeals filed by the Commissioner of Central Excise, Shillong.
2. Compliance with Section 86(2) of the Finance Act, 1994.
3. Application of mind by the Committee of Chief Commissioners.
4. Delay in filing the appeals.

Issue-wise Analysis:

1. Maintainability of the Appeals:
The respondent argued that the appeals filed by the Commissioner of Central Excise, Shillong, were not maintainable as they did not comply with Section 86(2) of the Finance Act, 1994. The Tribunal analyzed whether the appeals were filed following the correct legal procedures. The Tribunal concluded that the appeals were maintainable, as the Committee of Chief Commissioners had recorded their objections and directed the Commissioner to file the appeals, thereby complying with Section 86(2).

2. Compliance with Section 86(2) of the Finance Act, 1994:
The respondent contended that the appeals were not in accordance with Section 86(2) because the review orders were not signed by the Chief Commissioners simultaneously, suggesting non-application of mind. The Tribunal examined the original files and found that the Chief Commissioners had agreed with the analysis and recommendations of their subordinate officers, indicating compliance with Section 86(2). The Tribunal held that the procedure followed was sufficient under the law.

3. Application of Mind by the Committee of Chief Commissioners:
The respondent argued that the Committee of Chief Commissioners did not apply their minds independently, as the decisions were based on notes prepared by subordinate officers. The Tribunal found that the Chief Commissioners had reviewed and agreed with the notes, which constituted an application of mind. The Tribunal cited relevant case law, including decisions from the Allahabad and Calcutta High Courts, to support its conclusion that the Chief Commissioners' agreement with the notes was a valid exercise of their authority.

4. Delay in Filing the Appeals:
The respondent raised an objection regarding the delay in filing the appeals. The Tribunal noted that there was a delay of 26 days if considering the date of dispatch through the Postal Department, but it could be more if considering the receipt date at the Tribunal's Registry. The Tribunal directed the appellants to compute the exact delay and file an appropriate application to address this issue.

Conclusion:
The Tribunal dismissed the respondent's Miscellaneous Applications challenging the maintainability of the appeals and held that the appeals were filed in compliance with the procedures prescribed under Section 86(2) of the Finance Act, 1994. The Tribunal also addressed the delay issue and directed the appellants to file an application to compute the exact delay. The judgment emphasized the importance of procedural compliance and the application of mind by the Committee of Chief Commissioners in filing appeals.