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TMI Blog2016 (4) TMI 796X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial mind to the facts and law of the case by the concerned Committee of Commissioners of Central Excise is a condition precedent for filing appeal. Any non-application of mind in rendering opinion to file appeal may cause serious impact on the public exchequer or on the economic growth of the country. Since the authorization would be to one of the Central Excise Officers, the word “may” as appearing in sub-section (2) of Section 35B of the Act cannot be said to be discretionary or directory but it is a mandatory provision and should be read as “shall”. We do not find force with the submission of learned counsel for the appellant-Department to the effect that such word “may” is a directory one and as such the contention is jettissioned. Since it is a fiscal statute, it requires strict interpretation, no word can be construed otherwise and purposive interpretation is the call of the day. Adverting to the facts of the case and points of law as discussed by us, we are of the view that the authorisation made in Annexure-3 of the affidavit filed by the appellant to prefer appeal without same being filed along with appeal is surely an incurable defect and the same cannot be rectifie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Rule ); II. duty of ₹ 98,462/-(B.D.) and ₹ 531(Cess) for clearance of different varieties of papers; III. duty of ₹ 2,14,049/- for clearance of packing material on MODVAT inputs; IV. duty of ₹ 3,17,960/- for clearance of capital goods on which MODVAT duty was availed; V. duty of ₹ 6,68,173/- on the MODVAT inputs unutilized in the manufacture of finished goods; and VI. an amount ₹ 4,740/- reversible on the clearance of exempted goods which are not paid by the party at the time of clearance of these goods but paid by them later, should not be confirmed under section (1) of section 11A of the Central Excise Act, 1944 (hereinafter called the Act ) and relevant rules of the Rule. 3. Notice to show-cause was also issued as to why the penalty should not be imposed on the assessee under section 11A of the Act and relevant Rules made thereunder for suppression of the facts and in contravention of the aforesaid Rules with intent to evade payment of duty. It is also stated that a notice was also issued to show-cause as to why interest should not be paid under section 11AB of the Act and Rules made thereunder for the said reasons, as to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and Excise Appeal No. 251 of 2007-against the Executive (Central Excise) of respondent-company. Be it stated that vide common order dated 13.5.2008 learned CESTAT dismissed the Excise Appeal Nos. 250 and 251 of 2007 with observation that the appeal filed pursuant to the authorization from the Commissioner, Bhubaneswar-I instead of filing appeal petition by the present appellants along with valid authorization, signed by the Committee of Commissioners, the same, is not maintainable and rejected. On 25.4.2012 learned CESTAT also dismissed the Excise Appeal No. 674 of 2006 as infructuous by referring to the orders passed by the Tribunal in the above two appeals. Challenging the said order dated 25.4.2012 passed learned CESTAT in Excise Appeal No. 674 of 2006, the present appeal has been filed with the following three substantial questions of law : 1) Whether, in the facts and circumstances of the case, the Ld. CESTAT is correct in dismissing the appeal preferred by the Appellant/Department, on mere technical ground of lack of proper authorization by the Committee of Commissioners in term of Sub Sec.2 of Sec. 35B of the Act, though a plain reading of Sec.35-B and more specifically p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mits that provision of sub-Section (2) of Section 35B of the Act being directory, have not been properly appreciated by CESTAT. 8. It is the bone of contention that the grant of authorization of the Committee of Commissioners in terms of subsection( 2) of Section 35B of the Act is completely an intra7 departmental administration decision making procedure and there is no scope of advancing pleadings and deciding any lis between the parties for which non-compliance of the said administrative flaw, cannot be fatal to the quasi-judicial proceeding initiated. He also strenuously argued that the dismissal order passed by the learned CESTAT only on the ground of lack of authorization by the Committee of Commissioners is completely without jurisdiction. In the present case, Committee of Commissioners in terms of subsection (2) of section 35 of the Act was constituted by the Commissioner of Central Excise, Customs and Service Tax, Bhubaneswar-I under Commissionerate and Commissionerate of Central Excise, Customs and Service Tax, Bhubaneswar-II, but at the time of filing of Excise Appeal No. 674 of 2006 before the learned Tribunal, the Commissioner of Central Excise, Customs and Service T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erating on the facts and law involved in the particular case. So mere observance of the provision of law cannot be said to be empty formality but it is to be taken as a mandatory provision to be complied. So, he submitted to confirm the order of the learned CESTAT and dismiss the appeal. Points for Discussion 10. At the time of admission, the matter is taken up to find out the question of law raised in this case, but in a preliminary hearing, on consent of parties, we decided to find out whether there is compliance of sub-section (2) of Section 35B of the Act. DISCUSSION 11. It is admitted by both the parties that the Commissioner of Appeals disposed of the appeal filed by the respondent-company and his two officials for which the Commissioner of Appeals disposed of the Excise Appeal No. 674 of 2006 by the Commissioner on 25.6.2012 against respondentcompany whereas the learned Tribunal disposed of the Excise Appeal Nos.250 251 of 2007 preferred by two officers of the company respectively on 13.5.2008. It is not disputed that in the impugned order dated 25.4.2012, against which present appeal arises, has been been decided in the following manner : Per Shri S.K. Ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of Appeals before the CESTAT on the ground specified in another document and authorized the Additional Commissioner of Central Excise, Bhubaneswar-I to file appeals before the CESTAT, Kolkata. On going through the order dated 13.5.2008 passed in Excise Appeal Nos.250 251 of 2007, it appears it was passed much before the authorisation was made. The impugned order shows that relying on the order dated 13.5.2008 passed in Excise Appeal Nos.250 251 of 2007, the impugned order has been passed dismissing the appeal in 2012. The impugned order does not disclose whether cognizance of the authorisation dated 24.6.2008 has been taken by the learned CESTAT, if it is filed. In absence of any indication of filing the same in the impugned order, it cannot be said that the said authorisation has been filed in the impugned appeal while appeal was preferred. Thus, on materials on record, authorization neither finds place in the impugned order nor in the order passed in other two appeals. 14. Now let us discuss the provisions of law to find out whether the same is mandatory or directory. Sub-sections (1) (2) of Section 35B of the Act is reproduced herein below : THE CENTRAL EX ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the duty involved; or (ii) the amount of fine or penalty determined by such order, does not exceed fifty thousand rupees. (2) The Committee of Commissioners of Central Excise may, if it is of opinion that an order passed by the Appellate Commissioner of Central Excise under section 35, as it stood immediately before the appointed day, or the Commissioner (Appeals) under section 35A, is not legal or proper, direct any Central Excise Officer authorised by him in this behalf (hereafter in this Chapter referred to as the authorised officer) to appeal on its behalf to the Appellate Tribunal against such order. Provided that where the Committee of Commissioners of Central Excise differs in its opinion regarding the appeal against the order of the Commissioner (Appeals), it shall state the point or points on which it differs and make a reference to the jurisdictional Chief Commissioner of Central Excise who shall, after considering the facts of the order, if is of the opinion that the order passed by the Commissioner (Appeals) is not legal or proper, direct any Central Excise Officer to appeal to the Appellate Tribunal against such order. Explanation- For the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid down, and that in every case the object of the statute must be looked at. The cases on the subject will be found collected in Maxwell on Statutes, 5th Edn., p. 596 and the following pages. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time would not promote the main object of the Legislature, it has been the practice to hold such provisions to be directory only, the neglect of them, though punishable, not affecting the validity of the acts done. 17. The aforesaid observation has also been followed by the Hon ble Supreme Court in L. Hazari Mal Kuthiala v. Income-tax Officer, Special Circle, Ambala Cantt. and another reported in AIR 1961 SC 200. In Bhavnagar University v. Palitana Mill Pvt. Ltd., AIR 2003 SC 511 Their Lordships have observed : 23. It is the basic principle of construction of statute that the same should be read as a whole, then chapter by chapter, section by section and words by words. Recourse to construct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the appellant-Department to the effect that such word may is a directory one and as such the contention is jettissioned. Since it is a fiscal statute, it requires strict interpretation, no word can be construed otherwise and purposive interpretation is the call of the day. CONCLUSION 20. Now adverting to the facts of the case and points of law as discussed by us, we are of the view that the authorisation made in Annexure-3 of the affidavit filed by the appellant to prefer appeal without same being filed along with appeal is surely an incurable defect and the same cannot be rectified by filing an authorization later on in the appeal Nos. 250 251 of 2007 as stated by the learned counsel for the appellant. Similarly as the authorization by the Committee of Commissioners of Central Excise is not found in the impugned order, it must be observed that the impugned order passed by the CESTAT is correct, legal and proper. Hence we are of the considered view that the impugned order passed by the learned CESTAT being valid, legal and proper, cannot be interfered with. Accordingly the OTAPL is dismissed being devoid of merit. Dr. D. P. CHOUDHURY, J. I. MAHANTY, J. I agre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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