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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 ..... l'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 Excise Act, 1944 and therefore the said authorization is not valid, and hence the appeals should be dismissed; (ii) The Commissioner, who has signed the authorization, has not applied his mind to come to a conclusion that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce 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 remanded by the Tribunal and hence there is no bar to imposition of penalty in the remand proceedings. 5. The preliminary objection raised by the id. Advocate for the respondents regarding the competence of one Commissioner acting on behalf of committ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 (i) shall consist of two Chief Commissioners of Central Excise or two Commissioners of Central Excise, as the case may be." 7. There is no dispute that the Board has constituted such committees of two Commissioners. In the instant case, one of the Commissioners wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .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 diluted to that of a Committee of two Commissioners. Intention behind the legislative change replacing a provision of one Commissioner of the same rank authorising filing an appeal to a Committee of two Commissioners authorizing such appeal, seems to be a deliberate legislative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ressed 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 clearly result in bypassing the mandate of the changed law. I am also of the opinion that the said Circular is of no assistance to the Department in this case, where only one Commissioner has authorized filing of an appeal. 13. The ld. DR argues that at times, due to administrative ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs 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 behalf of the Committee. In the instant case, since only one Commissioner has given the impugned authorization, the same is not valid in. the eyes of law and consequently, the appeals require to be dismissed as not maintainable. I order accordingly. 15. The ld. DR prays that the Departme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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