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TMI Blog2014 (1) TMI 509X X X X Extracts X X X X X X X X Extracts X X X X ..... ” of the specific areas and Membership is by virtue of holding the post of Chief Commissioner of that area and members are not “the persons” who held the post on 12th May, 2007 alone. The inclusion of the two posts as members in the Committee under Section 86(1)(1A)(i) of the Finance Act, 1994 is in perpetual succession of the Officers holding the post of the Chief Commissioner of that particular area and therefore, immediately on the day on which the Officers demited the posts of the Chief Commissioner of Customs and Central Excise, Ranchi and Bhubaneswar, the other Officers, who have duly been appointed and posted on that posts, automatically become the Member of the Committee by virtue of their being Chief Commissioner. Therefore, from the date when these two Officers, who were duly appointed on the post of Chief Commissioner and were posted on the post for the area of Ranchi and Bhubaneswar, automatically became the Member of the Committee and were competent to take decisions - Since the appeal has not been decided by the Tribunal on merit, the appeal is remanded to the Tribunal for deciding it on its merit - Decided in favour of Revenue. - T.A. No. 2 of 2009 - - - Dated:- 27- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pointing either Sri Amar Kumar Singh or Sri R.N. Vittal Dass as Chief Commissioner of Central Excise for Ranchi and Bhubaneswar Zones, had been produced. However, two office orders - Office Order No. 186/2007, dated 26-7-2007 in respect of Sri Amar Kumar Singh and another Office Order No. 85/2008, dated 29-4-2008 in respect of Sri P.N. Vittal Dass, were produced but the Department had not produced any notification published in the Official Gazette appointing either of them as Chief Commissioner of Central Excise. The Tribunal also observed that In the meantime, in the absence of any Gazette Notification appointing the two signatories to the impugned Review Order as Chief Commissioners of Central Excise following our earlier Order in the case of M/s. Nafar Chandra Jute Mills (cited supra), we have no option but to hold that the direction to file the present Appeal has been issued without having the necessary statutory power and jurisdiction and the same is, therefore, non est in the eyes of law . 4. In view of the above reasons, the question for consideration before us is whether the order to Revenue to prefer appeal passed by the said Committee constituted under Section 86(1)(1A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 26-7-2007 and Office Order No. 85/2008, dated 29-4-2008 - former is the promotion order of Sri Amar Kumar Singh to the post of Chief Commissioner of Customs and Central Excise and this notification has been issued by the Government of India, Ministry of Finance, Department of Revenue after obtaining approval from the President of India and the latter is the posting order of Sri P.N. Vittal Dass, who appears to have been holding the post of Chief Commissioner of Customs and Central Excise, Visakhapatnam and was given additional charge of the post of Chief Commissioner of Customs and Central Excise, Bhubaneswar. In view of the above fact situation, learned counsel for the appellant submitted that there was no illegality in the constitution of the Committee and therefore, the order passed by the Tribunal dismissing the Revenue s Appeal No. 118/2008 is liable to be set aside. 8. Learned Senior Counsel, Mr. Poddar, submitted that Rule 3 is very clear and gives discretion to the Board only to the extent that the Board may exercise jurisdiction in the matter of appointment of any person as Central Excise Officer for the purpose of exercise of all or any of the powers conferred by or un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given jurisdiction over the areas of Jamshedpur, Patna and Ranchi. In view of this Gazette Notification, learned counsel for the respondent did not question the constitution of the Committee as such, but the learned counsel for the respondent submitted that as per Rule 3 of the Rules, 2002, the power of the Central Excise Officer could have been confirmed only by way of another notification and that notification should have been published in the Official Gazette. Learned counsel for the respondent submitted that the word, person has been used in Rule 3(1) of the Rules of 2002, which clearly indicates that in addition to constitution of the Committee under Section 86 of the Finance Act, 1994, the Board should have issued another notification in terms of Rule 3(1) of Rules of 2002. 11. However, we are of the considered opinion that such is not the requirement in any manner in view of the unambiguous provisions in Section 86(1)(1A)(i) and (ii), which empowers the Board to constitute the Committee in the name of post and holding such post or who may subsequently be appointed on such post automatically becomes the Member of such Committee and it is not the appointment as persona dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inance Act, 1994 and therefore, after demit of the office by the persons who were holding the post of Chief Commissioner for those areas, new notification in the name of the persons should have been issued by following the provisions of Rule 3(1) of Rules of 2002. 14. Again the argument is based upon the same plea ignoring the difference between persona disgrata appointment and appointment by virtue of appointment on the post. In the notification dated 12th May, 2007, the Member of the Committee are two Chief Commissioners of the specific areas and Membership is by virtue of holding the post of Chief Commissioner of that area and members are not the persons who held the post on 12th May, 2007 alone. The inclusion of the two posts as members in the Committee under Section 86(1)(1A)(i) of the Finance Act, 1994 is in perpetual succession of the Officers holding the post of the Chief Commissioner of that particular area and therefore, immediately on the day on which the Officers demited the posts of the Chief Commissioner of Customs and Central Excise, Ranchi and Bhubaneswar, the other Officers, who have duly been appointed and posted on that posts, automatically become the Membe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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