2018 (1) TMI 1211 - HC - Central Excise

Whether the appeal could have been dismissed on the ground of defective authorization? - rejection on the ground that the authorization does not bears the date below the signatures of one of the members - Held that - It is not the case of any party that the authorization has not been signed by the said members or that the other member who had not mentioned the date below his/her signatures was not available on 28-6-2010 or that she has not applied her mind before signing it - the non-mentioning of the date below the signatures of one of the members of the committee is not in violation of any statutory rule rather a mere irregularity of a clerical nature which is not fatal to the authorization - appeal allowed - decided in favor of Revenue.

Summary

Issues involved:
1. Affidavit of service filed by the appellant.
2. Service of notice to the respondent.
3. Challenge to the order of the Judicial Member by the Excise department.
4. Validity of the authorization for filing appeal by the Committee of Commissioners.

Detailed Analysis:
1. The appellant filed an affidavit of service stating that the appeal was served to the respondent along with an acknowledgement of receipt. The court noted that no further affidavit of service was required as per the filed affidavit.
2. After the appeal was admitted, notice was issued to the respondent via Registered Post A.D. However, the office report indicated that the notice was not returned undelivered, and no acknowledgment was received. Despite this, the court deemed the service of notice upon the respondent as sufficient, as no appearance was made on behalf of the respondent.
3. The Excise department challenged the order passed by the Judicial Member of the Custom, Excise, and Service Tax Appellate Tribunal (CESTAT). The CESTAT had dismissed the department's appeal citing a defect in the authorization for filing the appeal by a member of the Committee of Commissioners.
4. The court considered a substantial question of law regarding the rejection of the appeal based on the absence of a date below the signatures of one of the committee members authorizing the appeal. Referring to a previous judgment, the court emphasized that obtaining authorization aims to prevent frivolous appeals and clarified that the absence of a date below the signature does not invalidate the authorization unless proven otherwise.
5. The court found that the authorization in question was dated and signed by the committee members, and the absence of a date below one member's signature was a clerical irregularity, not a fatal error. Consequently, the court held that the appeal could not be dismissed solely on the grounds of a defective authorization and ruled in favor of the Revenue, allowing the appeal.