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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 ..... ent of Section 35(2) of the Act. In this case, the file does not show any such satisfaction or opinion having been recorded by the Committee of Commissioners - commissioner merely signed the proposals placed before him by the junior officer by writing the words ‘accepted’ - there is no application of mind by the Committee of Commissioners and they have merely appended their signatures to the note sheets prepared by the subordinate officers. In that view of the matter, the review order has to be held as not sustainable and consequently appeals have to be held as not maintainable - Decided against Revenue. - Appeal No. 2569/2011-EX[DB] - FO ORDER NO. 58179/2013 - Dated:- 5-11-2013 - Ms. Archana Wadhwa and Mr. Manmohan Singh, JJ. For the Appellant : Ms. Shweta Bector, DR For the Respondent : Shri Hemant Bajaj, Advocate JUDGEMENT Per Archana Wadhwa: Being aggrieved with the order passed by Commissioner (Appeals) revenue has filed the present appeal. 2. Learned advocate appearing for the Respondent has taken a strong objection to the maintainability of the appeal itself inasmuch as the provisions of Section 35 B(2) of the Central Excise Act have not been fully ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 1944 read with Rule 15 of the Cenvat Credit Rules, 2004. The Commissioner (A), Central Excise, Delhi-III, Gurgaon, vide the impugned Order-in-Appeal, set aside the Order of the adjudicating authority holding that similar dispute arose with M/s. Maruti Udyog Ltd. and the Hon'ble Tribunal allowed the appeal of the M/s. Maruti Udyog Ltd. 2004 (173) ELT 382 (Final Order No. 662/04/NB-(A) dated 29.6.2004) The department has filed SLP against the Final Order under reference in the Hon'ble Supreme Court of India (CA No. 7829/04) and (SLP No. 22645/2004). The copy of the proposal is placed opposite. This SLP is still pending in the Hon'ble Supreme Court of India. In view of the above facts Order-in-Appeal No. 514/BK/GGN/2010 dated 27.12.2010 is submitted for information and orders please. In view of A above, we may appeal against the O-I-A. 5. It is seen from above, the Commissioner has signed the proposal placed before him by the superintendent and Assistant Commissioner (Judicial), by writing the words accepted the other Commissioner of the Committee has simpliciter signed the same on 21.02.2011 whereas the first Commissioner signed on 11.02.2011. 6. We find that an id ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for consideration by the Committee of Commissioners of Central Excise, Delhi-I and II constituted vide Notification No. 25/2005-C.E. (N.T.) 5. This was the opinion of the aforesaid two officers who rightly submitted the matter for consideration by the Committee of Commissioners. However, the Commissioner of Central Excise-I and Commissioner of Central Excise-II who allegedly constitute the Committee of Commissioners, simply appended their signatures to the aforesaid note on 7th January and 8th January, 2008 respectively. This shows that there was no meeting of the aforesaid two officers to consider the case. The record also does not disclose that these two officers applied their mind to the issue and recorded any opinion, as per the requirement of Section 35B of the Central Excise Act that the order of the Commissioner (A) was not legal or proper and warranted to be challenged by filing an appeal. 6. We are of the view that there should be a meaningful consideration which should be reflected on the note sheets in order to comply with the requirement of Section 35(2) of the Act. In this case, the file does not show any such satisfaction or opinion having been recorded by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in the case of Commr. of C. Ec. Cus., Surat Vs. Shree Ganesh Dyeing PTNG. Works and held as under:- 11. Section 35B (2) of the Act is made up of two parts or two stages. The first stage is formation of an opinion by Commissioner that the order made by the appellate authority is not legal or proper, the second stage being filing of an appeal against order of appellate authority by directing any Central Excise Officer authorized by the Commissioner in this behalf to file an appeal on behalf of the Commissioner. Thus, the Commissioner is vested with a discretion, in the first instance to form an opinion as to whether appellate order is legal or proper and then exercise the discretion to decide whether an appeal should be preferred or not, having come to the conclusion that the order is not proper or legal. 12. In the circumstances, the first stage as to formation of an opinion, cannot be treated as an idle formality and the view expressed by Member (Technical) that once the grounds of appeal state that the order of appellate authority is not legal and proper, it would be sufficient compliance with the requirement of formation of an opinion, even if no separate opinion is f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant falls has interpreted the law against the Revenue, the said decision are required to be followed. In any case, he submit that the Hon'ble Allahabad High Court decision is in respect of signing the review order on two different dates and does not deal with the non-application of mind. In fact, the said decision observes that if there is application of mind, signing of review order on to different dates would not be fatal. Thus, it leads to the fact that the application of mind and formation of opinion prior to signing the review order is an absolutely necessacity. In any case, submits the learned advocate that the said decision of the Hon'ble Allahabad High Court was considered by the Tribunal in latest decision in the case of CESTAT-Delhi M/s. L R Sharma Co reported as 2013-TIOL-944-CESTAT-Del. After considering the entire case law on the subject, Tribunal observed that 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. Such authorization is unsustainable and the appeal is accordin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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