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TMI Blog2014 (12) TMI 834X X X X Extracts X X X X X X X X Extracts X X X X ..... mechanically granted permission for filing of appeal without due application of mind; and whether the said aspect can be examined and made subject matter before the aforesaid Tribunal in an appeal under Section 86 (2) of the Finance Act, 1994? 2. Learned counsel for the appellant-Revenue has relied upon decision dated 20th March, 2014 in CEAC No.20/2014, titled Commissioner of Service Tax versus L.R. Sharma ( L.R. Sharma-1 , for short) wherein, the following observations have been made: 7. The Court has considered the submissions of the parties. The scope of enquiry of a Court into administrative acts is limited. This is all the more so when the act in question is neutral (i.e. the filing of an appeal), rather than an order placing a demand upon the assessee or otherwise prejudicial to the interests of the assessee. An order under Section 86(2) is for the filing of an appeal, which will be considered on merits by the CESTAT. Whilst there is a requirement for a meaningful procedure to be followed in all administrative acts, including the present one, the Court must view the deliberation by the concerned authority in context. In this case, the respective Superintendents of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e noticed, do not warrant such a strained construction. 3. On the other hand, learned counsel for the respondent-assessee has relied upon an earlier decision of this Court in Commissioner of Central Excise, Delhi-I versus Kundalia Industries 2012 (279) E.L.T. 351 (Del), wherein, it has been held as under: 4. The aforesaid order of the CESTAT is under challenge in the present appeal. In order to show that the Commissioner (Appeals) was not legal and proper, appeal should be filed. The noting in the relevant record are produced. A perusal thereof would reveal that after the receipt of the copy of order passed by the Commissioner (Appeals), the matter was examined in the Department at the level of Superintendent (Rev.) and Assistant Commissioner (Rev.) who had vide note dated 4th February, 2007 had given their reasons stating in view of the above grounds, Order-in-Appeal No. 116/C.E./DLH/2007 dated 15-10-2007 of Commissioner (Appeals) appears to be incorrect, illegal, unfair and merits to be reviewed for filing appeal before the Hon'ble CESTAT. Submitted for consideration by the Committee of Commissioners of Central Excise, Delhi-I and II constituted vide Notification No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given the underlying rationale behind Section 86(2), unless the manner in which the authorization has been granted by the Committee of Chief Commissioners is arbitrary or based on irrelevant information, the Court ought not to interfere with the administrative functioning of the concerned authority, nor impose a new and onerous requirement of an independent detailed and personal consideration by the Chief Commissioners themselves, ignoring the context, i.e. the detailed consideration of the issue by the subordinate officers also involved in the process. The cases relied upon by the Respondent are of no assistance. Neither Kundalia (supra), which concerned authorization under Section 35 of the Central Excise Act, 1944 (requiring the Chief Commissioners to be of the opinion that the order in question is illegal and improper, as opposed to only objecting to the order under Section 86(2)), nor ITC Limited (supra), deal with the standards for review under Section 86(2) or the law as laid down in Berger (supra). In fact, recently in Commissioner of Central Excise v. Ufan Chemicals, 2013 (290) ELT 217 (All), the Allahabad High Court, while considering a similar issue, observed that the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner of Central Excise to appeal to the Appellate Tribunal against the order. (2A) The Committee of Commissioners may, if he objects to any order passed by the Commissioner of Central Excise (Appeals) under section 85, direct any Central Excise Officer to appeal on his behalf to the Appellate Tribunal against the order: Provided that where the Committee of Commissioners differs in its opinion against the order of the Commissioner of Central Excise (Appeals), it shall state the point or points on which it differs and make a reference to the jurisdictional Chief Commissioner who shall, after considering the facts of the order, if is of the opinion that the order passed by the Commissioner of Central Excise (Appeals) is not legal or proper, direct any Central Excise Officer to appeal to the Appellate Tribunal against the order. xxx 8. Learned counsel for the assessee on the said aspect relies upon the order dated 02.11.2012 passed in W.P.(C) No.6918/2012, L.R. Sharma Co versus Commissioner of Service Tax and Ors.( L.R. Sharma-2 , for short) to the following effect: 3. The petitioner challenges the maintainability of appeal before the CESTAT in respect of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liance is also placed by the Revenue on another decision of the Allahabad High Court in Commissioner of Customs, Central Excise Service Tax versus Devson Steels, 2014 (301) ELT 295 (All). 10. In view of the aforesaid, we are inclined to refer the following two questions to a Larger Bench: (1) Whether the Custom, Excise Service Tax Appellate Tribunal (CESTAT) in an appeal under Sub-Section (2) and (2A) of Section 86 of the Finance Act, 1994 read with applicable provisions of the Central Excise Act, 1944, can examine and go into the question of application of mind on merits by the Committee of Chief Commissioners or Commissioners? (2) In case the aforesaid question is answered in affirmative, i.e. against the Revenue and in favour of the assessee, then, whether the decision of the Committee of Chief Commissioners or Commissioners should be treated as null and void if they have appended signatures to the elaborated notes and objections prepared by the subordinate officers, before the file is put to the Chief Commissioners or Commissioners for examination? 11. The appeal may be listed before Hon ble the Chief Justice for appropriate orders. - - TaxTMI - TMITax - Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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