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TMI Blog2009 (4) TMI 146X X X X Extracts X X X X X X X X Extracts X X X X ..... l of defect allowed. - E/3054 and 3247/2006 - 313-314/2009-EX(PB) - Dated:- 15-4-2009 - Justice R.M.S. Khandeparkar, President and Shri M. Veeraiyan, Member (T) Shri S. Shah, DR, for the Appellant. Shri Bipin Garg, Advocate, for the Respondent. [Order per : Justice R.M.S. Khandeparkar, President (Oral)]. - Both these applications arise in the appeals filed against common order passed by Commissioner, Central Excise, Gurgaon, Delhi-III. Since the common question of law and facts arise in both these applications, the same were heard together and are being disposed of by this common order. 2. By the joint application, the appellants seek to place on record the copy of decision in terms of Section 35B(2) of the Central Excise Act, 1944 in relation to the appeals filed by the appellant, and the another application being for early hearing of the appeals. 3. It is a case of the appellants that consequent to the decision by the Committee of Commissioners in terms of Section 35B(2) of the said Act, 1944 in August 2006 that present appeals had been filed on 20th September 2006. However, necessary document in that regard remained to be filed and to cure the technical d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led without formation of opinion by the competent authority in terms of Section 35B(2) and the appeals having been filed by the officer who was not authorized by the committee, the appeals are incompetent and not maintainable. The defect in that regard cannot be said to be of technical nature and the same cannot be cured by filing such application. Reliance is sought to be placed in the decision of the Gujarat High Court in the matter of CCE C, Surat v. Shree Canes/Dyeing Printing Works reported in 2008 (232) E.L.T. 775 (Guj.) and of the Tribunal in the matter of CCE, Kolkata-IV v. G.K. Plastics (P) Ltd., reported in 2008 (229) E.L.T. 259 (Tri.-Kolkata). He further submitted that the decision which is sought to be taken in February 2009 allegedly reiterating the earlier decision cannot retrospectively validate any illegal act of filing the appeals by the Excise Officer. Besides there is no reason disclosed for approaching the Tribunal after a period of three years from the date of filing of the appeals. 7. The undisputed facts in this case are that the appeals were filed before the Tribunal on 20-9-2006 by Shri Piyush Patnaik, Commissioner, Central Excise, Delhi-III ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the statute does not require any meeting, as such, of the Committee of Commissioners and the decision in that regard can be taken by circulation of relevant papers amongst the Members of such Committee. The said contention is seriously disputed on behalf of the respondent. 11. The Section 35B(2) of the said Act, on the face of it, nowhere requires any meeting as such to be held of the Committee of Commissioners for forming the opinion about filing of the appeal. It is not the requirement of law that in every administrative matter, Committee which is called upon to form an opinion on any of the administrative issues is required to meet and then only to form opinion on the issue to be considered. It is settled practice in administrative matters that opinion can be formed by the members of a committee and can be noted by circulating the relevant papers amongst the Members of such Committee. Besides it may not be practicable for every such Committee to hold meeting for forming opinion on each and every issue and, therefore, it is difficult to accept the contention on behalf of the respondent that the opinion formation by the Members regarding need for filing of appeal by way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... opinion as to whether appellate order is legal or proper and then exercise the discretion to decide whether an appeal should be preferred or not, having come to the conclusion that the order is not proper or legal". That was a case wherein there was no opinion formed by the Commissioner before filing the appeal. In the case in hand, the materials placed before us, clearly reveal formation of opinion by the Committee of the Commissioners for filing the appeals. The ruling of the Gujarat High Court in Shree Ganesh Dyeing Printing Works (supra) case is of no help to the respondent to contend that the authorities have not complied with the first requirement of Section 35B(2) of the said Act. In the case in hand, the note sheet clearly discloses the opinion about the need to file appeal was followed on 31-8-2006 and 11-9-2006 the appeal was filed on 20-9-2008 by the Commissioner, Central Excise, who was also the member of the Committee. 14. The next contention relates to absence of authorization to file the appeal. It is the contention on behalf of the respondent that section 35B(2) specifically requires authorization by the Committee of Commissioners to the Excise Officer to file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Commissioners before filing the appeals against the order of the Commissioner (Appeals). It clearly discloses reference to "Commissioner, Central Excise-Delhi-III". It is true that the notings are not elaborate and descriptive. But proper reading of the entire noting as a whole obviously reveals that those notings relate to the issue of filing of the appeals against the order passed by the Commissioner (Appeals). In the noting, the expression "CCE-Delhi-III" has been recorded subsequent to the recording of the formation of opinion to file the appeals, it is therefore obvious that officer named with description as above was the officer authorized to file the appeals. This is further clear from the decision in February 2009 where the Committee of Commissioners has clearly recorded that there was formation of the opinion for filing of the appeal and authorization to the Commissioner, Central Excise, Delhi-III, Gurgaon to file the appeals. The records being so clear, the appeals in fact having been filed by Commissioner, Central Excise, Delhi-III, Gurgaon, we find no substance in the contention raised by the learned Advocate, that the appeal has been filed by the officer without an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and has submitted that the facts of the said case were similar to the case in hand and the Tribunal has held that there was no meeting of the Commissioners and therefore there was no opinion formed in terms of Section 35B(2) of the Act. In the said case, the Tribunal observed that "it would be proper to mention that the authorization filed by Revenue as available on record on 26-4-2007 did not exhibit the date on which the Committee met and took decision. The space for date appeared on the top of Authorisation was left blank. Surprisingly copy of Authorisation filed by Revenue along with Misc. Application bears the date as 22nd. This appears to be an insertion. Secondly when one member of the Committee dated the impugned Authorisation as 22-11-2006 the other member signing the same dated as 29-11-2006. This clearly proves that there was no meeting of the Committee either on 22-11-06 or 29-11-2006 for signing by two members on two different dates. This lead the Tribunal to come to a conclusion that filing of appeal by Revenue was not under proper Authority. Even the impugned authorization does not exhibit whether order appealed suffered from legal infirmity or propriety and if so i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, the observation in the said decision cannot be held to lay down the law on the said issue. 22. As regards the observation made in para 5.2 in the said decision, it is apparent that the Tribunal held that appeal was not maintainable and, therefore, there was no mistake apparent on the record in order to exercise the power of rectification of a mistake. In the matter in hand, it is a case of mere delay on the part of the department to place on record a relevant document regarding due compliance of procedural rules. Being so, the decision in G.K. Plastics (P) Ltd., (supra) is of no help to the respondents. 23. As already observed above, we find that there was a clear opinion formed by the Committee of Commissioners for filing the appeal much prior to the actual filing of the appeal and even there was authority to the Commissioner, Central Excise, Delhi-III to file such appeal and undisputedly the appeal has been filed by the Commissioner, Central Excise, Delhi-III. Being so only defect, if any, which have to be cured was to place on record the relevant document in that regard and that is what is sought to be done by the appellant by the present application. 24. H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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