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TMI Blog2014 (2) TMI 587X X X X Extracts X X X X X X X X Extracts X X X X ..... f the learned advocate we refer to the note sheet noting in the relevant file: Kindly peruse the PUC. Order-in-Appeal No. 514/BK/GGN/2010 dated 27.12.2010 passed by the Commissioner (A), Delhi-III, Gurgaon in the case of M/s. Honda Motorcycle and Scooter India Pvt. Ltd., Plot No 1&2, Sector 3, IMT Manesar, Gurgaon. The issue involved is that on the basis of Physical Stock Taking conducted on the last day of the Financial Year 2007-08 shortage of Cenvatable inputs valued at Rs. 1,31,04,469/- was found. On being pointed out the party stated that the question of variation is very small as compared to the total material consumed and did not furnish any plausible explanation for the shortage of inputs found. Thus they were issued show cause notice asking them as to why: (i) the Cenvat credit amounting to Rs. 18,89,664/- should not be disallowed and recovered from them under Rule 14 of the Cenvat credit Rules, 2004 read with Section 11A of the Central Excise Act, 1944; (ii). the interest on the amount of Cenvat credit mentioned above should not be demanded and recovered from them under Rule 14 of the Cenvat Credit Rules, 2004 read with Section 11AB of the Central Excise Act, 1944; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 35B of the Central Excise Act. (ii) There was no authorization by the Committee of Commissioners to file appeal on its behalf. The Hon'ble High Court accordingly observed as under:- 2. Section 35B (2) of the Central Excise Act reads as under:- The Committee of Commissioners of Central Excise may, if it is of opinion that an order passed by the Appellate commissioner of central Excise under Section 35, as it, stood immediately before the appointed day, or the Commissioner (Appeals) under Section 35A is not legal or proper, direct any Central Excise Officer authorized by him in this behalf (hereafter in this chapter referred to as the authorized officer) to appeal on its behalf of the appellate Tribunal against such order. 3. It is clear from the plain reading of the aforesaid provision that the Committee of Commissioners has to form an opinion before filing the appeal, that the order of Commissioner (Appeals) is not legal or proper and it has to further direct any Central Excise Officer authorized by him in this behalf, to file such an appeal, as noted above, the CESTAT find that neither of the two requirements whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal record which has been produced before us. All that the file reveals is that a note was put up by the Assistant Commissioner suggesting that the order of Commissioner (Appeals) may please be appealed against. Thereafter the note observed that the file may be marked to the Commissioner Rohtak for decision by the Committee. There is no decision of the Committee on record except the signature of the Commissioner Delhi-III obtained on 19-12-2005 and the signatures of Commissioner Rohtak obtained on 27-12-2005. Both the commissioners have not even said that they agree with opinion of the Asstt. Commissioner rendered in the Note at X and 'Y'. The only ground in support of the appeal taken in the grounds of appeal is that the opinion of the Committee of Commissioner of Customs was available on the file notings and the appeal was filed under the signatures of the Commissioner who was a Member of the Committee. It has been suggested that the aforesaid fact was not placed before the Tribunal and the only defect was that no formal authorization order was made. 4. A perusal of the record shows that firstly there is no opinion expressed by the Committee of Commissioner of Customs; second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the order against which the appeal is to be filed is 'not legal or proper'. 9. Apart from the above High Court decisions, the issue was also considered by the Tribunal in the case of CCE, Indore Vs. Siddhartha Marketing Services Ltd. 2013-TIOL-781-CESTAT-Del. 10. Learned DR appearing for the Revenue has drawn our attention to the Hon'ble Allahabad High Court decision in the case of CCE, Kanpur Vs. Ufan Chemicals - 2013 (290) ELT 217 (All.) vide which High Court held that as the decision by the Committee of Commissioners was not taken on one day as the signed order were on different date, the same will not vitiate the review order. Accordingly the Tribunals order was set aside and the matter was remanded to the Tribunal for decision on merits. He submits that the Hon'ble High Court held that since there is no statutory provision requiring that the Commissioners should sit on the same day at the same time and take a decision for filing of an appeal, decision would not suffer from error, unless it is shown that the same was passed without application of mind by the Commissioners, either sitting together or on different times or dates and at different places. As such, he pleade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dance with the legal provisions of Section 35B (2). We have already discussed the entire case law on the subject. Instead of referring to all the precedent decision, we may take note of recent decision of the Tribunal in the case of Commissioner of Service Tax, Delhi M/s. L R Sharma & CO and 2013-TIOL-944-CESTAT-Del. wherein the entire case law on the subject was considered. After taking note of the various decisions including the Allahabad High Court decision, the Tribunal held that passing of review order has to comply with the statutory obligation of due application of mind 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. 13. Since the Chief Commissioner have merely appended their signatures on the respective note sheets , drawn up by the respective subordinate officers and the record does not discloses due application of mind, the authorization to prefer the appeal was held to be unsustainable and accordingly the appeal was dismissed. 14. W ..... X X X X Extracts X X X X X X X X Extracts X X X X
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