2015 (1) TMI 1081 - AT - Central Excise

Restoration of appeal - there is no formal order under Section 35B(2) - Held that - In the notesheet though there is a proposal to file an appeal against the impugned order the same had been merely signed by the Commissioners constituting Committee without stating as to whether they agree or disagree with the same and therefore there is no decision on the notesheet to file appeal against the Commissioner (Appeals) s order. Besides no formal order under Section 35B(2) mentioning as to why the impugned order is not legal and proper and authorizing a Central Excise Officer to file the appeal against the same has been produced. In view of this we hold that appeal of the Revenue is not maintainable and there is no merit in the Revenue s application for restoration. - Restoration denied.

Summary

Issues:
1. Restoration of appeal filed by the Revenue based on lack of formal authorization under Section 35B(2) of the Central Excise Act, 1944.

Analysis:
The case involved applications for the restoration of appeals filed by the Revenue, which were previously dismissed by the Tribunal due to the absence of formal authorization under Section 35B(2) of the Central Excise Act, 1944. The Tribunal's earlier order highlighted the requirement that appeals should be filed based on authorization by the Committee of Commissioners, specifying the grounds for appeal and authorizing a Central Excise officer to file the appeal. The Revenue argued for restoration, citing a previous judgment where an appeal filed based on a review order noted on a file's notesheet was deemed valid without separate authorization. The Revenue contended that the appeal pertained to clandestine removal, warranting restoration.

The Respondent, on the other hand, opposed the restoration, distinguishing the current case from the precedent cited by the Revenue. The Respondent emphasized that the previous case involved a specific direction for appeal filing on the notesheet, which was subsequently placed on record, unlike the present situation where no such direction or formal authorization was evident. The Respondent reiterated the statutory requirement under Section 35B(2) necessitating a formal order from the Committee of Commissioners specifying the appeal's grounds and authorizing a Central Excise Officer, which was not met in this instance.

Upon hearing both parties and examining the records, including the notesheets presented, the Tribunal found that while there was a proposal to appeal the impugned order, it lacked a definitive decision by the Committee of Commissioners. The notesheet only bore the signatures of the Committee members without a clear indication of agreement or disagreement with the appeal proposal. Additionally, no formal order under Section 35B(2) justifying the appeal's grounds and authorizing a Central Excise Officer was provided. Consequently, the Tribunal concluded that the Revenue's appeal was not maintainable due to the absence of requisite authorization, leading to the dismissal of the application for restoration.

In conclusion, the Tribunal upheld the dismissal of the Revenue's appeal, emphasizing the necessity for compliance with Section 35B(2) requirements regarding authorization for appeal filing against Commissioner (Appeals)'s orders. The judgment underscored the significance of formal authorization and clear decision-making processes in maintaining the appeal's validity, ultimately leading to the rejection of the restoration application by the Revenue.