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TMI Blog2008 (6) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... was dismissed by Order No. A-738/KOL/07 dated 26-4-2007 [2007 (218) E.L.T. 711 (Tribunal)]. When the matter was heard on that day, the learned DR. fairly stated that though the Appeal was filed on 25-10-06, i.e., after incorporation of sub-section (2) to Section 35B of the Central Excise Act, 1944, no authorisation from the Committee of Commissioners was filed along with the Appeal. On a specific query from the Bench, a copy of the Note Sheet was produced, which exhibited the fact as recorded by the Commissioner, Siliguri stating - "We may file appeal in view of the views in the Chief Commissioner's letter". For such cause, the Tribunal made two clear observations as under :- (a) There was no opinion rendered by the Committee to show that the impugned Order-in-Appeal was neither legal nor correct and no reasons were recorded to come to such a conclusion, (b) The Committee had not authorised the Deputy Commissioner who filed the Appeal. Observing that there was no valid authorisation, Appeal of Revenue was held to be not maintainable, for which that was dismissed. 2. Against the Order of Dismissal, Revenue went to the Hon'ble High Court of Calcutta challenging the same and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly defines how such duties and powers may be exercised. The same statute also lays down the manner of the appointment of public officials and the extent of their jurisdiction. The issue of locus standi of a public official has therefore to be resolved by the examination and interpretation of the relevant statute. 7. The issue that has arisen in this case is whether Shri C.M. Mehra, the Applicant has locus standi in this case to file these Miscellaneous Applications before the Tribunal. He was apparently posted as Commissioner of Central Excise, Haldia by the Board and recently by Office Order No. 120/2008 dated 31-5-2008, he has been transferred from that charge to P.A.C., Delhi. We are informed that he is yet to hand over charge. In between, he is stated to have taken additional charge of Commissioner of Central Excise, Siliguri on 4-6-07 in pursuance of Office Order No. 44/Gr.A/2007/CC dated 31-5-2007 issued by the Additional Commissioner of Central Excise in the Office of the Chief Commissioner of Central Excise, Kolkata. This Office Order indicates that the Chief Commissioner has allocated the additional charge of Central Excise, Siliguri Commissionerate to Shri C.M. Me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise Rules, 1944 and none of these delegate the Board's authority to the Chief Commissioner to appoint a Commissioner. The learned J.C.D.R. states that once an Officer is appointed as a Commissioner under a notification, his subsequent posting to a specific charge cannot be questioned. Dr. Chakraborty states in this regard that the statute requires appointment to a jurisdiction by notification and adds that even promotions to the grade of Commissioners are not being made recently through notifications but merely by issue of office orders contrary to the statutory provisions. He further adds that lack of jurisdiction cannot be cured by consent or waiver as has been held by the Hon'ble Supreme Court in Sushil Kumar Mehta v. Govind Ram Bohra - (1990) 1 SCC 193. 11. We find that the Board has issued Notification Nos. 14/2002-C.E.(N.T.) dated 8-3-2002 specifying jurisdictions of Chief Commissioners, Commissioners and Commissioners (Appeals). Under the same, the jurisdiction of Commissioner, Haldia is specified as District of Midnapore, part of Howrah District and Andaman and Nicobar Islands whereas the jurisdiction of Commissioner, Siliguri is specified as Districts of Darjeelin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erform the current duties of an appointee can exercise administrative or financial powers vested in the full-fledged incumbent of the post, but he cannot exercise statutory powers, whether these powers are derived direct from an Act of Parliament (i.e. Income Tax Act) or Rules, Regulations and Bye Laws made under various Articles of the Constitution [e.g. Fundamental Rules, CCS(CCA) Rules, DFPR Rules, Civil Service Regulations etc.]" 15. We note that these instructions are only stating what is obvious. Unless a Commissioner is appointed by the Board to hold a specific charge as provided under the statutory provisions, he cannot exercise any of the statutory powers under the Central Excise Law. He can at the most, exercise administrative and financial powers. The Board has no authority to delegate its power to appoint a Commissioner and specify his jurisdiction. The Central Government has not delegated Board's Authority to the Chief Commissioner in this regard. Hence, in the absence of such delegated authority, the Chief Commissioner cannot assign statutory work of a separate jurisdiction without a valid delegation of Board's power in this regard by the Central Government throug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made to pay cess, then there is no apprehension of diversion of exempted yarn and consequently, the requirement to follow the excise procedure for exempted goods is of no relevance in this case. Accordingly, in our view, a further demand of cess made on the Respondents is not justified. Therefore, the Order passed by the lower Appellate Authority setting aside the demand is very much in accordance with the law and the scheme of levy of jute cess. Consequently, in our view, the impugned Order-in-Appeal does not require any intervention by the Tribunal as far as the merit of the case goes. Validity of the Decision of the Committee of Commissioners 20. We observe from the records of the case that the decision by the two Commissioners to file an appeal is not an independent decision in exercise of the powers vested in them. One Commissioner has recorded on the Note Sheet at page No. 5 of File No.V(2)96/CESTAT/A R/COM/SLG/05, "We may file appeal in view of the views in the CC's letter" and the other Commissioner has only signed the Note Sheet two days later on 20-5-06. Such noting does not indicate that the Commissioners have exercised their independent mind in taking the deci ..... X X X X Extracts X X X X X X X X Extracts X X X X
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