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TMI Blog2008 (11) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... Harin P. Raval, for the Appellant. Shri Paresh M. Dave, for the Respondent. [Judgment per: D.A. Mehta, J.]. - The appellant-Revenue has proposed the following question: "Whether the Hon'ble Tribunal is empowered to reject/set aside: (i) the Revenue appeal only on the ground that the appeal was filed by the commissioner himself and not by an officer subordinate to him on the basis of his authorisation. (ii) the Revenue appeal without considering the merits of the case." 2. On 23-7-2008 notice was issued for final disposal by this Court. Though the appeal is listed for admission hearing, with consent of the learned advocates appearing for the respective parties the appeal is taken up for final hearing today. 3. The fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Member vide order dated 28-4-2006 concurred with the view expressed by Member (Judicial). Thus, by a majority opinion, the appeal came to be dismissed as being not maintainable. 6. Mr. Harin P. Raval appearing for appellant-Revenue invited attention to provisions of Section 35B(1) of the Act to submit that the said provision granted a substantive right of appeal to any person who is aggrieved and such a right cannot be taken away by the Tribunal, even if there was non-compliance with procedural requirements of sub-section (2) of Section 35B of the Act. It was further submitted that even sub-sections (3), (4) and (5) of Section 35B of the Act were procedural in nature. That sub-section (6) of Section 35B of the Act provided for filing a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent-assessee, learned advocate Shri Paresh M. Dave submitted that insofar as the Tribunal had held that Commissioner himself could not have preferred the appeal, in light of the subsequent decision by a larger Bench of the Tribunal, the assessee agreed that the said view of the Tribunal was incorrect and the appeal of Revenue could not have been dismissed as being not maintainable. In relation to the requirement of formation of opinion, attention was invited to the Apex Court decision in the case of Collector of Central Excise, Vadodara v. Rohit Pulp Paper Mills - 1998(101) E.L.T. 5(S.C.). 8. The basic controversy revolves around correct construction of provisions of Section 35B, more particularly sub-section (2) of the said Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny person who is aggrieved by any one of the four categories of orders mentioned therein is entitled to prefer an appeal against such an order before the Appellate Tribunal. Under Section 35B(1)(b), an order passed by Commissioner (Appeals) under Section 35A of the Act is also appealable; similarly the order made by Appellate Commissioner of Central Excise under Section 35, as it stood immediately before 'the appointed day', is also appealable under clause (c ) of sub-section (1) of Section 35B of the Act. 10. However, when one comes to sub-section (2) of Section 35B of the Act, it becomes clear that the right statutorily granted to file an appeal under sub-section (1) of Section 35B of the Act is defined by provisions of sub-section (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statement of law made by the Apex Court in the case of Collector of Central Excise, Vadodara v. Rohit Pulp Paper Mills (Supra) may be usefully referred to. "The provisions of Section 35B(2) clearly require as a pre-requisite to the direction to any Central Excise Officer to file an appeal the formation of the opinion by the Collector that the order against which the appeal is to be filed is 'not legal or proper'." 13. The contention that where Commissioner decides to file the appeal himself, he need not form an opinion, is an incorrect reading of the requirement of the provision. There could be innumerable instances where, even after forming an opinion that the order of the appellate authority is not legal or proper, the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompliance with the statutory requirement of sub-section (2) of Section 35B of the Act, namely, fulfilment of the mandatory pre-requisite condition before an appeal is lodged with the Tribunal. 15. Insofar as the second stage is concerned, the view expressed by the majority of the Members of the Tribunal is legally incorrect. When a person is statutorily entitled to delegate powers to another person to file an appeal on behalf of the first named person, it goes without saying that the power which can be delegated is the power which the first named person would be entitled to exercise. Hence, until and unless the Commissioner is entitled to file an appeal, there is no question of the Commissioner authorising another officer to file appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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