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TMI Blog2013 (5) TMI 703X X X X Extracts X X X X X X X X Extracts X X X X ..... ision authorising a Central Excise Officer to file the appeal. The decision would not suffer from any fatal error unless it is shown that the decision is obtained without application of mind by the Commissioners either sitting together or at different time or dates at different places. The appeal did not lack merits inasmuch as the question as to whether the penalty under Section 11AC of the Act can be levied when the duty is deposited prior to issuing show cause notice. The order dated 23-2-2010 dismissing the appeal and the order dated 31-3-2010 dismissing the recall application suffer from gross error of jurisdiction by the Tribunal in examining the validity of the authorisation, which it did not possess. - matter restored before tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appeals raise common questions of law. 6. Shri S.P. Kesarwani, appearing for the Central Excise Department submits that an appeal may be filed under Section 35B(2) by the Central Excise Department, where the Committee of Commissioners of Central Excise is of the opinion that an order passed by the Appellate Commissioner of Central Excise under Section 55, as it stood immediately before the appointed day, or the Commissioner (Appeals) under Section 35A, is not legal or proper, by any Central Excise Officer authorized in this behalf to file the appeal to the Appellate Tribunal against such order. 7. Along with the recall application, the Department produced a copy of the order of the Committee of Commissioners. The order was not signed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... back to the authority which passed such decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary. The Appellate Tribunal in the absence of any objections taken by the party respondents acted illegally in assuming the powers to examine the validity of the decision taken by the Committee of Commissioners to file the appeal. 9. In the present case, the order passed by the Tribunal would show that no one had appeared on behalf of party-respondent and that there was no objection taken by any person that the decision taken by the Committee of Commissioners of Central Excise to file the appeal was not in accordance with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ribunal dated 10th November, 1987. Inasmuch as, however, the Tribunal has not disposed of the appeal on merits, we remand the matter to the Tribunal for consideration of the appeal on merits and in accordance with law. The appeal herein is disposed of as aforesaid." 11. In the present case, the observation of the Tribunal, that the Commissioners did not take the decision on the same day and thus they were not ad idem at the same time to authorise the filing of appeal, apparently goes beyond the object of authorisation under Section 35B(2) of the Act. In order to avoid filing of frivolous appeals and unnecessary appeals, the Legislature has provided for an authorisation by the Committee of Commissioners of Central Excise. The method and man ..... X X X X Extracts X X X X X X X X Extracts X X X X
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