9911796707
TMI Blog2014 (11) TMI 463X X X X Extracts X X X X X X X X Extracts X X X X ..... d at the time of arriving at the decision to prefer an appeal against the impugned order. Sub-section (2) and (2A) of Section 86 of the Act, 1994 are required to fulfill the following conditions as under:- (a) There should be meaningful consideration and application of mind by the Committee of Commissioners constituting the Committee; (b) Proper review cum authorization to be given to the lower authorities to prefer the appeal; (c) Appropriate signatures with the date should be appended by the Committee of Commissioners; (d) There should be a meeting of the Commissioners constituting the Committee. 2.1 Some of the above requirements such as date, review, authorization etc. may be procedural requirements can be cured. But, the requirements of proper application of judicial mind, providing reasons for arriving at a conclusion and meeting of the Committee of Commissioners are substantial requirements, non-compliance of which would lead to denial of natural justice. 2.2 The review function being carried out by the Committe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommittee of Commissioners did not bear the date. He submits that it is a curable defect which was complied with by the Department on production of the relevant file in their Miscellaneous Application filed before this Tribunal. Subsequently, the applicant changed their stand that there should be a meeting of the Commissioners constituting the Committee and such plea cannot be accepted. In any event, there is no guidelines issued by the Board and/or any rules framed by the Legislature in respect of functioning of the Committee of the Commissioners and therefore the Committee of the Commissioners cannot be penalized on such ground as there was no meeting of the Committee of Commissioners. He also distinguished the case laws relied upon by the applicant. It is submitted that review of the adjudication orders by the Committee of Commissioners is administrative work and not a quasi judicial powers. Even, the Board's Circular dated 23.11.2012 does not prescribe mandatory meeting of the Committee of Commissioners for the purpose of review. Both sides filed written submissions with copy of case laws. 4. After hearing both sides and on perusal of the records, we find that the Tribunal by M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Central Excise (Appeals) under section 85, may appeal to the Appellate Tribunal against such order. (1A) (i) The Board may, by notification in the Official Gazette, constitute such Committees as may be necessary for the purposes of this Chapter. (ii) Every Committee constituted under clause (i) shall consist of two Chief Commissioners of Central Excise or two Commissioners of Central Excise, as the case may be. (2) The Committee of Chief Commissioners of Central Excise may, if it objects to any order passed by the Commissioner of Central Excise under section 73 or section 83A or section 84, direct the Commissioner of Central Excise to appeal to the Appellate Tribunal against the order. Provided that where the Committee of Chief Commissioners of Central Excise differs in its opinion against the order of the Commissioner of Central Excise, it shall state the point or points on which it differs and make a reference to the Board which shall, after considering the facts of the order, if is of the opinion that the order passed by the Commissioner of Central Excise is not legal or proper, direct the Commissioner of Central Excise to appeal to the Appellate Tribunal against the ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... respectively to resolve the difference. 7. There is no dispute that the right of appeal of the Revenue is created under the statute and it is a substantive right. It is noted that with effect from 16.7.2001, the power of filing appeal before the Appellate Tribunal was vested on the Board or the Commissioner of Central Excise, as the case may be, and no dispute was raised except some procedural defects such as non-filing of authorization etc. The learned Senior Advocate fairly accepted that such procedural defects are curable. From 11.5.2007, the power of filing appeal was vested to the Committee of Commissioners against the order of Commissioner (Appeals). It is a policy decision empowering the particular executives to consider to appeal to the Appellate Tribunal from time to time. There is no doubt that the executive must abide by the Act or the Rules and the guidelines, as the case may be in exercise of its executive powers provided in the statute to appeal before the Tribunal. If we read the above provisions harmoniously, it is clear that such policy was framed under Section 86 of the Act, 1994 to appeal before the Appellate Tribunal against the order of the Commissioner or Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of mind by the committee. (ii) It should be ensured by the members of the committee that review cum authorization orders are passed in each case. (iii) Procedural infirmities in the review cum authorization viz. signature of one Commissioner, signature without date, name not mentioned below signature etc should be avoided. (iv) The Members of the Committee may make use of Video Conferencing for conducting meeting wherever feasible. 9. The learned Commissioner (AR) for Revenue submitted that the present appeal, was filed under the approval of Committee of Commissioners. In support of their contention, they placed the relevant pages of File C. No. V/2/327/2011-LRTG. It is noticed from the File Note that the Inspector and the Superintendent, CE & ST, LTU, Chennai by two page notes requested the Committee of Commissioners to consider the impugned orders for appeal. Thereafter, the Committee of Commissioners had recorded their notes as under:- 16. The Tribunal in the case of Collector of Central Excise Vs. Cawnpore Sugar Works - 1989 (42) ELT 11 held as under:- As earlier seen, the Superintende ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r cannot also be equated with an order revising the order of the lower authority. The order of revision is the one finally determining the issue against the other side. The power of the Collector envisaged under Section 35E is not one of revision of the order of the lower authority but one directing filing of appeal before Collector (Appeals) to revise the order of the subordinate authority and a final order of revision is to be passed only by Collector (Appeals) after inviting cross-objection from the other side. We also note that in Section 35E(A) (this section is yet to come into force because it is to be operative from a notified date), the Collector of Central Excise is given the powers of revision where the specific provision for reasonable opportunity for representation has been provided under sub-section (3). In view of the above analysis, we find that the Apex Court decision does not support the case of the ld. Advocate, on the contrary, it supports the view, we have taken. In the result, the appeals are dismissed, as not maintainable under Section 35B of the Central Excise Act and hence stay applications also do not call for our consideration. If the appeals sought to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of frivolous and unnecessary appeals. Such an order may be challenged, like a sanction in a criminal case only on the ground of non-application of mind, absence of material on which the mind has been applied by the authority, and lack of bona fides. The merit of the order of the Committee of Commissioner of Central Excise granting approval may not be subjected to challenge, as the appeal in any case has to be considered and decided on merit by the Appellate Authority on merits under Section 35B of the Act. 11. For the aforesaid reasons we are unable to sustain the reasons of the CESTAT in dismissing the appeal filed by the revenue. 20. The Hon'ble Gujarat High Court in the case of CCE Vs. Rupa Dyeing & Printing Pvt. Ltd. - 2014 (301) ELT 334 (Guj.) held as under:- 4. Counsel further submitted that at the relevant time the Commissioner of Central Excise & Customs, Surat-II was also holding additional charge of the Commissioner, Central Excise & Customs, Surat-I, and therefore, the decision was taken by the Commissioner, Central Excise & Customs, Surat-II to file appeal, was that of the Committee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minated only on this ground. Decision of Tribunal is reversed. Question is answered in favour of the appellant. Proceedings are remanded to the Tribunal for consideration on merits. Appeal is disposed of. 21. The learned Senior Advocate strongly relied upon the decision of the Hon'ble Delhi High Court in the case of Kundalia Industries (supra) which has been considered by the Hon'ble Allahabad High Court in the case of Devson Steels (supra). The other decisions are mostly by the Single Member Bench of the Tribunal and therefore there is no requirement for discussion. 22. In view of the above discussions, we hold that, as there was no guidelines or instructions, by the Board regarding the functioning of the Committee of Commissioners till the Boards Circular dated 23.11.2012, the right of appeal of the Revenue created under the statute cannot be defeated on the ground that there was no meeting of the Committee of Commissioners, when, it has satisfied the test of reasonableness and fairness. We have already stated that the right of appeal is not merely a matter of procedure but it is a substantive right, which becomes vested in a party, cannot be taken away except by express enact ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
