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TMI Blog2008 (12) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... n 16-12-2008 and hence, the cases were kept pending for a day to enable the ld. SDRs meet the preliminary objections and also for making a fuller examination in regard to the same. Both the cases relate to Central Excise Commissionerate, Kolkata-IV. In both the cases, the impugned orders have been passed by the Commissioner of Central Excise (Appeals), Kolkata-IV and in both the cases, stereotype letters of authorization have been given which read as follows: Ex. Appeal No. ESM- 314/05 "Letter of Authorisation to file Appeal before CESTAT. Dated, Kolkata, the 10th August, 2005 The Committee of Commissioners of Central Excise, consisting of the Commissioners of Central Excise, Kolkata IV and Kolkata VII Commissionerates, constituted in terms of Notification No. 25/05-Central Excise (NT) dated 13-5-05 of CBEC, Dept. of Revenue, Ministry of Finance, Govt. of India for the jurisdiction of Commissioner of CE, Kolkata IV Commissionerate for the purpose of Section 35B(2) of Central Excise Act, 1944, being duly empowered so to do under Sec. 35B(2) ibid do hereby authorize the Commissioner of Central Exicse, Kolkata IV Commissionerate to file on its behalf an appeal with CE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n filed in Ex. Appeal No. EDM-418/05 is dated 25th August, 2005 when one of the Commissioners has signed it only subsequently on 30-8-2005. 4. The Bench also wanted to know why different practices are being followed in different Commissionrates for giving authorizations under Section 35B(2) and different formats are being adopted for filing appeals under this said sub-section. For example, in Ex. Appeal No. EDM-548/05 relating to Dibrugarh jurisdiction, the authorization does not bear any date and both the Commissioners who have signed the authorization have not affixed any date below their signatures. The Appeal in the said case has been filed by the Superintendent, but the verification has been signed by the Commissioner declaring what is stated by the Superintendent to be true. The statement of facts and grounds of appeal in the same appeal have been signed by the two Commissioners and the same has been verified by the Superintendent stating what has been signed by the two Commissioners to be true. In the case of Appeal No. EDM-339/05, no authorization has been filed, but the appeal itself has been filed by the Committee of the two Commissioners. 5. In reply, the ld. SDR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decide whether an appeal should be preferred or not, having come to the conclusion that the order is not proper or legal. (Para 11) (ii) In this context the statement of law made by the Apex Court in the case of Collector of Central Excise, Vododara v. Rohit Pulp Paper Mills - 1998 (101) E.L.T. 5 (S.C.) 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'.(Para 12) (iii) 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. Therefore, the first stage regarding formation of opinion is a mandatory requirement of Section 35B(2) of the Act which cannot be treated to be a procedural formality. In a given case, it would be always open to the Tribunal to call upon the Department to point out to the Tribunal as to whether an opinion has or has not been formed by the Commissioner before the appeal was preferred. The formation of opinion by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Board was not done within the time stipulated in the Central Excise law. 10. From the cited decision of the Hon'ble Gujarat High Court, we find that the Tribunal can adjudicate as to whether the necessary opinion was formed by the reviewing authority before directing to file an appeal and from the cited decision of the Hon'ble Supreme Court in M.M. Rubber (supra), we find that it has approved the act of Tribunal adjudicating upon whether the review was done within the stipulated period or not after a detailed examination. 11. We are aware of the fact that there are a number of decisions of the Tribunal and this Bench had occasion to pass few of those orders, where the Tribunal has considered as to whether the review under the law has been done within the prescribed time period, whether the appeals have been filed within the stipulated time period and whether the reviewing authority has formed an opinion as to whether the order appealed against is not legal or proper. We have also in the past looked at the constitution of the Reviewing Committee to see as to whether the same was constituted as per legal requirement or not. 12. It is surprising that the Coordinate Benc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble' (sic) means nothing because every order passed under the Act is appealable to the next higher forum except the orders passed by the Highest Court of the land. 14. In view of the foregoing, we hold the view that the Tribunal has the power to consider as to whether the substantive requirement under Section 35B(2) has been met before filing an appeal under the said sub-section. In this case, since the Committee of the Commissioners has neither come to a finding that the impugned orders are not legal or proper nor given any reasons therefor, the authorizations issued by the Committee are not valid in the eyes of law and the appeals filed in pursuance of such authorizations are not maintainable. Hence, we dismiss both the appeals filed by the Department. 15. As regards the submissions of the ld. SDRS that the Member (Legal) Shri Vijay Singh has written D. O. letters to remove the various defects noticed in the appeals filed by the Department, we observe that things have not improved at all and we come across number of such defective appeals with disturbing regularity. In the interest of justice and public revenue, we would like to advise the concerned Member (Legal) Shri Vi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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