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TMI Blog2008 (10) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs, Bhubaneswar. In terms of Section 35-E of the Central Excise Act, 1944, a departmental appeal against the order of the Commissioner as an adjudicating authority can be filed on the direction of the Committee of Chief Commissioners. We shall notice the provisions in this regard later. At this stage, we may mention the relevant facts and the nature of dispute which presently arises for consideration. 3. There is, in fact, a small dispute about the date of the order of the Commissioner itself. In the body of the order date of passing the order has been mentioned as 17-5-2006 whereas the Commissioner signed the order on 18-5-2006. Copies of the order were despatched by the Office on 19-5-2006. Since the limitation for review of the order under Section 35-E runs from the date of the order, and the order was ex facie signed by the Commissioner on 18-5-2006, the date of order is taken to be 18-5-2006. 4. As indicated above, application/appeal can be filed only on the direction of the Committee. In the instant case, the Committee comprised of Chief Commissioner of Central Excise, Bhubaneswar and Chief Commissioner of Central Excise, Lucknow. On 18-5-2007, on review of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, the delay in taking decision at the end of the Committee of Chief Commissioners should be condoned. It was submitted that the Tribunal has inherent powers to do so. 7. We may clarify that the Tribunal can condone the delay in filing appeal before it and not any delay in taking decision by the Committee. In fairness to the respondent, it may be mentioned that according to the learned counsel, in case of appeal by the Revenue under Section 35-E, there is no such power of condonation. The decision of the Larger Bench in Commissioner of Central Excise, Mumbai v. AZO Dye Chem, 2000 (120) E.L.T. 201 (T-LB) was cited in this connection. It is not necessary to go into this aspect as there is no dispute that the appeal in this Tribunal was filed on receipt of the authorization under Section 35-E(4) within the prescribed period. 8. We do not find substance in the stand of the Department that review order was passed within the prescribed period. Where the decision is to be taken by a multi-member body, it may take the decision at a meeting, but where the decision is taken by circulation, the decision making process cannot be said to be complete until the last member of the body (commit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... do so, make order under sub-section (1) or sub-section (2), within a period of six months, but not beyond a period of one year, from the date of the decision or order of the adjudicating authority. (4) Where in pursuance of an order under sub-section (1) or sub-section (2) the adjudicating authority or the authorised officer makes an application to the Appellate Tribunal or the Commissioner (Appeals) within a period of three months from the date of communication of the order under sub-section (1) or sub-section (2) to the adjudicating authority, such application shall be heard by the Appellate Tribunal or the Commissioner (Appeals), as the case may be, as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals, including the provisions of sub-section (4) of section 35B shall, so far as may be, apply to such application. It may be mentioned here that the power vested in the Committee of Chief Commissioner/Commissioner of Central Excise under Section 35-E(1) was earlier vested in the Board i.e Central Board of Excise Customs until the 2005 amendment. 11. On behalf of the Revenue emph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eview order can be examined only by the High Court - at the instance of the Revenue or the assessee, as the case may be. It may be noted that the respondent has not challenged the correctness of the review order and the authorization, in the present case. 14. We may take judicial notice of the fact that a mechanism is invariably provided - by rules or circular - laying down the decision making process or mechanism in the matter of filing of appeal by the government or department of the government or the Board and corporations etc. It is clear that the Government cannot afford the luxury of appeal in all cases irrespective of issues and stakes involved. May be that in a particular case the mechanism provided in the rules or circular was not fully observed and decision was taken to file the appeal. Whether the appellate court can go into the question as to whether the decision was vitiated on any ground? 15. It was submitted that in M.M. Rubber Co. (supra) that the Tribunal had entertained similar objection on behalf of the assessee and dismissed the appeal as incompetent with which the Supreme Court did not interfere. The decision in M.M. Rubber Co. is an authority on the point ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 35-E of the Act has been passed by the Board. 6. Date of communication of the order referred to in (3) above to the adjudicating authority. 18. Having given our anxious consideration to the submissions of the counsel we are of the view that the particulars regarding the date of the impugned order or order, review order and communication thereof to the adjudicating authority vide columns 3, 5 6 are integral parts of any appeal. The appeal, clearly, must identify the orders against which, and pursuant to which, it is filed. Since appeal by the Revenue can be filed only on the authorization pursuant to order of the Review Committee, necessary particulars in this regard have also to be disclosed. But it does not mean that the Tribunal gets the jurisdiction to go behind the review order/authorization and make any probe as to whether the same is in accordance with law. The Tribunal is only required to see that the appeal has been filed on the strength of the review order; that it is otherwise properly framed in conformity with the rules. In the present case, except that the review order is said to have been made after a period of one year, no other defect has been pointed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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