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TMI Blog2007 (4) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... late authority having confirmed the order of demand should have also imposed penalty under Rule 57-I(4) of the Central Excise Rules, 1944. 2. Shri P.K. Das, ld. JDR appearing for the Revenue supports the Departmental's appeals and states that the lower appellate authority is not justified in setting aside the penalty. 3. Shri Kartik Kurmy, ld. Advocate appearing for the respondents, on the other hand, supports the order passed by the lower appellate authority and challenges the appeals filed by the Revenue on the following grounds: (i) The authorization to file the present appeals has been signed by only one Commissioner and not by a Committee of Two Commissioners as required under Sub-section (2) of Section 35B of the Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircular No. 825/2/2006-CX, dated 6-2-06 under which, in paragraph 3, it has been clarified that even where one member of the committee takes a view to file an appeal and the other member opposes it, still the decision should be to file an appeal. Hence according to the ld. DR, the decision to file an appeal by one Commissioner is also valid under the said Circular of the Board. He further states that though the note sheet order contains proposal. for filing the appeal by the Joint Commissioner, the Commissioner who has approved the proposal, has applied his mind and hence the appeal cannot be challenged on that ground. He also states that in the first round of litigation, the Department's appeal had challenged the entire order, which was re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appointed day, or the Commissioner (Appeals) under Section 35A, is not legal or proper, direct any Central Excise Officer authorized by it in this behalf (hereafter in this Chapter referred to as the authorized officer) to appeal on its behalf to the Appellate Tribunal against such order". (ii) The Committee for this purpose is required to be constituted by the Board. The relevant provision is contained in Section 35(1B) which reads as under :- "35(1B). (i) The Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1%3) may, by notification in the Official Gazette, constitute such Committees as may be necessary for the purposes of this Act. (ii) Every Committee constituted under Clause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal by a Committee of two Chief Commissioners. However, the proposal was modified and ultimately the Finance Act, 2005 provided for authorization by a Committee of two Commissioners. Though the Notes on Clauses to the Finance Act, 2005 and the absence of any parliamentary .debate on this change do not throw any further light, the change itself indicates that the earlier provision enabling the jurisdictional Commissioner of the same rank examining the question of legality and correctness of an order passed by a Commissioner (Appeals) was not satisfactory. The Finance Bill provision entrusted the examination of legality and correctness of a Commissioner (Appeals) order to a Committee of two Chief Commissioners. But subsequently, it was dilu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per and authorize filing an appeal against the same. Such an interpretation would render the 2005 amendment nugatory, as such authorization would be no different from an authorization given prior to the 2005 amendment. 12. For the same reason, I am of the opinion that the view expressed in the Board's Circular dated 6-2-06 cited by the ld. DR is contrary to the legislative change brought about in 2005. Approval by one Member of the Committee on the face of opposition by another Member cannot be construed as the Committee forming an opinion that the order passed by the Commissioner (Appeal) is not legal or proper. The direction issued by the Board to file an appeal in such cases of divided opinion among two Members of the Committee would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e can also very well discharge his duties as a Committee Member. As such, the ground of exigency raised by the ld. DR has to be rejected on both counts. 14. In view of the foregoing analysis of the legal position, I am of the view that one Commissioner holding charges of two Commissioners cannot constitute a Committee of Commissioners to form an opinion that an order passed by the Commissioner (Appeals) is not legal or proper and consequently, he cannot authorize filing of an appeal against the same. The legal requirement after the 2005 amendment is that a Committee of two Commissioners must form an opinion that an order passed by the Commissioner (Appeals) is not legal or proper and such a Committee has to authorize filing an appeal on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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