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TMI Blog2013 (6) TMI 537X X X X Extracts X X X X X X X X Extracts X X X X ..... s for condonation of the delay of three days in preferring the appeal. - Decided against the revenue. - ST/2258 of 2012 - FINAL ORDER NO.56165/2013 - Dated:- 26-4-2013 - G Raghuram And Sahab Singh, JJ. For the Appellant : Shri Amresh Jain, DR. For the Respondent : Shri J K Mittal, Adv. Per: G Raghuram: Revenue has preferred the substantive appeal (Service Tax Appeal No.2258 of 2012), aggrieved by the adjudication order No.73-74/GB/2012 passed by the Commissioner, Service Tax Delhi, whereby the proceedings against the assessee for non remittance of service tax for the period 2004-05 to 2008-09 were dropped. The appeal is preferred pursuant to a decision of the review committee (comprising the Chief Commissioners, Central Excise, New Delhi and Chandigarh), communicated to the Commissioner, Service Tax Delhi vide a covering letter dated 30.07.2012. As the appeal was filed with a delay, CoD application No. 2955 of 2012 is also preferred seeking condonation of the delay of three days in preferring the appeal. 2. Responding to the application for condonation of delay, the respondent/assessee filed a memorandum of Cross-Objection contending:- (a) That the decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioners of Central Excise Delhi Zone and Chandigarh Zone merely appending their signatures on 14.07.2010 and 23.07.2012 respectively; on note sheet prepared by subordinate officers; and (d) The Chief Commissioners thus abdicated the statutory responsibility, to review an adjudication order for preferring an appeal, to subordinate officers. 6. We have carefully perused the original record relating to the grant of authorisation signed by the Chief Commissioners of Central Excise. The following is chronology of events relevant by the record: (a) The Chief Commissioner, Delhi Zone addressed a letter dated 25.06.2012 to the adjudicating authority to forward the file pertaining to the adjudication order, expeditiously; (b) On 27.06.2012 the office of the adjudication authority forwarded the file as directed; (c) An office note was drawn up by the office of Chief Commissioner of Central Excise, Delhi Zone (DZ) setting out the brief facts of the case; a summary of the adjudication order; an analysis of the same indicating that the adjudication authority erred in dropping proceedings; and proposing that the Committee of Chief Commissioners review the adjudication order, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs connected therewith reveal that an assessee aggrieved by an adjudication order passed under Section 73 or 83A, or an appellate order passed by the Commissioner (Appeals) under Section 85 may prefer an appeal, within the time stipulated. Sub-section (1A) authorises the Board to constitute committees and clause (ii) thereof enjoins the committee shall comprise two Chief Commissioners or the two Commissioners of Central Excise, as the case may be. Sub section (2) confers a discretion on the Committee, if it objects to any adjudication order (passed under Section 73 or Section 83A), to direct the adjudication authority to appeal to this Tribunal against the adjudication order. Other provisions of sub section (2) set out the procedure to be followed where there is a difference of opinion among the Chief Commissioners constituting the committee, not relevant for purposes of the present adjudication. Sub section (3) enacts an extended period of limitation of four months (from the date on which the order to be appealed against is received by the committee of Chief Commissioners), for preferring an appeal to the Tribunal. Apparently an extended period of limitation is provided since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd a further decision of the committee reiterating its earlier decision regarding formation of an opinion and authorisation to file such appeals. This Tribunal referred to the decision of the Karnataka High Court in Commissioner vs. ITC Ltd. - 2008 (221) ELT 331 (Kar.) wherein the High Court ruled that there is no statutory requirement as to a meeting of The Commissioners comprising the committee and that a decision could be taken by circulation, since it is essentially an administrative decision. It requires to be noticed that in Grand Prints Pvt. Ltd. also a note sheet was prepared by the Superintendent on 23.08.2006 for consideration by the committee of Commissioners which was endorsed by the Commissioner, Delhi on 31.08.2006 and the Commissioner, Rohtak on 11.09.2006. The Commissioner, Delhi had endorsed "we may file appeal. This Tribunal followed the decision of the Karnataka High Court in ITC Ltd. and rejected the "contention of the assessee, that the decision must be signed at a joint meeting of the Commissioners comprising the committee. - In Commissioner of Central Excise, Deihi-I vs. Kundalia Industries reported in 2012 (279) ELT 351 (Del.), the Delhi High Court was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1944 as the committee of Commissioners fail to sit together to apply their minds to the facts of the case; the matter was dealt with like any other bureaucratic file without going through the record; and that mere signatures were appended on the note drawn up by subordinate officers. - In CCE, Jamshedpur vs. M/s TRF Ltd. the High Court of Jharkhand pronounced judgment dated 27.07.2012 on a matter requiring analysis of Section 86(1)(1A)(i) of the Act. This decision cited by the Revenue is of no relevance to the facts of the present case. Revenue was in appeal before the High Court against the order of the Kolkata Bench of this Tribunal which rejected Revenue's appeal on the ground that since there was no gazette notification with regard to appointment of the two Commissioners comprising the committee, the decision to prefer the appeal to the Tribunal, was incompetent. The High Court found that there was such a notification and remitted the matter to the Tribunal for a decision on merits. The decision of the High Court of Jharkhand in CCE, Ranchi vs. La Opala, RG Ltd. - 2012 (285) ELT 501 (Jhar.) merely follows and applies the earlier judgment of that Court in TRF Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... quirement of Section 86(2) of the Act. If there is due application of mind, independently by the two Commissioners comprising the committee in respect of the relevant material and the integers of the decision making process, even if the concurrence as regards the decision to prefer an appeal is arrived at by circulation of relevant files and the satisfaction of the Commissioners is recorded on different dates and at different places, the decision would not be void, illegal or violative of the provision. The decision of the Delhi High Court in Kundalia Industries does not enunciate a ratio obligating a joint meeting or sitting of the Commissioners comprising the committee. The ratio in Kundalia Industries, in our respectful view is only that the record should disclose due application of mind by the two officers, to the issue and recording of an opinion, reflecting such application of mind. 12. The contrary view recorded by ld. single Member of this Tribunal in Shree Rajasthan Synthetics to the effect that there should be joint meeting of the Members of the committee on a specific date, is unsustainable as a trans contrary to the decision of the Karnataka High Court in ITC Ltd. and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 07.2012) the respective office notes, there is sufficient compliance of Section 86(2), is the contention. 15. The above contention does not commend acceptance. As pointed out by this Tribunal in V.S. Exim and by the Delhi High Court in Kundalia Industries, mere appending of signature on the departmental note file in a mechanical fashion does not constitute sufficient compliance with the clearly implied statutory obligation of due application of mind by the Commissioners comprising the committee, to the relevant twin components of the decision; (a) a rational consideration of the relevant material pertaining to the adjudication order/ appellate order against which the appeal to this Tribunal is to be preferred; and (b) the appropriateness / desirability of preferring an appeal. 16. In the facts and circumstances of this case, since the Chief Commissioner (DZ) and Chief Commissioner (CZ) merely appended their signatures on 14.07.2012 and 23.07.2012 to the respective note sheets and memorandum of facts and analysis, drawn up by the respective subordinate officers and the record neither records nor discloses due application of mind, the authorisation to prefer the appeal ..... 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