2016 (8) TMI 5 - AT - Central Excise

Maintainability of revenue appeal - Held that - it is clear that the direction to any Central Excise Officer Authorized by the Committee of Commissioners will, as per Section 35B(2), be necessarily have to be issued by way of an authorization by both the Commissioners constituting the said Committee. This has certainly has not been done. We find that the impugned Authorization dated 25.10.2007 has been signed by only one Commissioner of the Committee. We are afraid that the submission by the AR that the note sheet from the file from which the said authorization was issued was signed by both Commissioners, will not help his case since a note sheet is only an internal file document and certainly not the legally prescribed document envisaged under Section 35B (2) of the Act. - Revenue appeal dismissed.

Summary

Issues:
1. Maintainability of the appeal based on the validity of the authorization order under Section 35B of the Central Excise Act, 1944.

Analysis:
The case involved a dispute regarding the duty liability of a manufacturing unit under the Central Excise Tariff Act, 1985. The respondents had opted for a scheme for the discharge of duty liability, but subsequent show-cause notices were issued demanding duty, interest, and penalty. The Additional Commissioner confirmed the duty liability, interest, and penalty, which was set aside by the Commissioner (Appeals). The Department appealed this decision before the Appellate Tribunal CESTAT HYDERABAD.

The primary issue raised during the hearing was the maintainability of the appeal based on the validity of the authorization order under Section 35B of the Central Excise Act, 1944. The respondent contended that the authorization order should have been signed by all Commissioners in the Committee formed under Section 35B(1B) of the Act. The respondent argued that since the authorization was not signed by both Commissioners, the appeal was not legally maintainable. The Department, however, argued that even though the authorization was not signed by both Commissioners, the note sheet of the file from which the authorization was issued had been signed by both Commissioners.

After considering the arguments from both sides and examining the relevant legal provisions, the Tribunal found that the authorization to appeal to the Tribunal needed to be issued by both Commissioners constituting the Committee, as per Section 35B(2) of the Act. The Tribunal noted that the impugned authorization was signed by only one Commissioner, which did not comply with the legal requirements. The Tribunal referred to precedents and case laws to support its decision, emphasizing that the appeal filed without valid authorization was not maintainable.

In conclusion, the Tribunal held that the appeal filed by the Department was not maintainable due to the lack of proper authorization as required under Section 35B(2) of the Central Excise Act, 1944. Citing legal precedents and statutory provisions, the Tribunal dismissed the appeal, affirming that the authorization order signed by only one Commissioner did not meet the legal requirements for filing the appeal.