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TMI Blog2008 (1) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... of Commissioners of Central Excise (in short the Committee ) that the order passed by the Commissioner (Appeals) is not legal or proper and authorization of the Central Excise officer to file appeal before this Tribunal in terms of Section 35-B(2) of Central Excise Act, 1944. He submits that the appeal is not maintainable and liable to be rejected. The Revenue filed Miscellaneous Application opposing the preliminary objection and the respondent also filed objection against the Miscellaneous Application. 3. The learned Advocate submits that the appeal filed by the Revenue is not maintainable for the reasons as given below :- (a) No opinion of Committee of Commissioners was filed with the appeal; (b) No authorization of the Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CESTAT (b) CCE, Bhubaneshwar-I v. Indian Plastics Ltd. Another - 2007 (81) RLT 391 (c) CCE, Bangalore-I v. ITC - 2007 (210) E.L.T. 193 (T) = 2007 (79) RLT 251 (d) CCE, Coimbatore v. Shree Karthik Papers Ltd. - 2006 (206) E.L.T. 384 (e) CCE, Coimbatore v. L.G. Balakrishnan and Bros. - 2007 (211) E.L.T. 248 (Tri. - Chennai) = 2007 (6) S.T.R. 106 (Tri. - Chennai) (f) CCE, Delhi v. Bhabani Pigments Ltd. - 2002 (148) 323 (Tri.) 5. The learned DR on behalf of the Revenue, strongly opposed the objection raised by the learned Advocate for the respondents. He submits that it is revealed from the note sheet of File enclosed with the Miscellaneous Application that the Committee of Commissioners directed to file appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o appeal (on its behalf) to the Appellate Tribunal against such order. On a plain reading of the provisions of Section 35-B(2) of the Act, it appears that the Committee shall give its opinion and direct any Central Excise officer to file the appeal. I find that the proviso to Section 35-B(2) provides the constitution of Committee. The word opinion according to the Concise Oxford English Dictionary means judgement or belief based on grounds of short of proof . It is a formal statement of professional advice. Thus, the Committee shall form an opinion that the Order of the Commissioner (Appeals) is not legal or proper and direct the Central Excise officers to appeal on their behalf to the Appellate Tribunal against such order. So, it is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndustries Pvt. Ltd. reported in 2007 (217) E.L.T. 396 (Tri.) observed that provisions for review by Committee of Commissioners were introduced to bring about qualitative improvement in process and to prevent frivolous appeals. Therefore, the filing of appeal by the Revenue and compliance of provision of Section 35-B(2) would be looked into seriously. The learned DR produced the copy of the note sheet of the Department s file. I find that the Hon ble Bombay High Court in the case of Bombay Chemical Ltd. (supra) held as under :- It is true that in the Government Departments files mover upwards with the notes made by the officers at the different levels for approval. Sometimes even after approval, on reconsideration, orders are not actually ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect. For the failure of the Tribunal or its office to do the same, revenue can not be made to suffer. The position is well settled. In view of the above decision of the Larger Bench, the Revenue should be given an opportunity to rectify the defects by way of filing the authorization with opinion and therefore, there is no need to discuss the case laws of the Tribunal cited by the learned Advocate. 8. In view of the decision of the Hon ble Bombay High Court in the case of Bombay Chemicals Ltd. (supra), the note sheet of the Department s File cannot be accepted. However, the larger Bench of the Tribunal in the case of Lloylds Insulation (India) Ltd. (supra) held that it is curable defect and therefore, the Revenue is directed to file the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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