MAINTAINABILITY OF APPEAL BEFORE APPELLATE TRIBUNAL

[Mr. M. GOVINDARAJAN]

The tax laws provides for filing appeal against the order of the Adjudicating Authorities as well as the appellate authorities. Unless otherwise specifically provided in the law appeal cannot lie before the appellate forum. The following case laws will explain the same.

In ‘Express Handlings Worldwide V. Commissioner of Customs (CSI, Airport), Mumbai’ – 2014 (2) TMI 116 - CESTAT MUMBAI the appeal was filed against the order of Commissioner of Customs revoking the registration issued to the Authorized Courier under Regulation 14(1) of the Courier Imports and Exports (Clearance) Regulations, 1998. The Tribunal held that as per the said regulation, there is no provision for filing appeal before the Tribunal.   In the absence of any provision under the regulation, appeal cannot be maintained.

In ‘CC V. Dhanalakshmi Paper Mills Limited’ – 2014 (2) TMI 152 - CESTAT CHENNAI the Assessee was granted refund since their appeal in entirety had been allowed by the lower Appellate Authority. The department filed an appeal against refund order on the grounds that lower Appellate Authority only allowed appeal on valuation and did not consider classification of goods. The CESTAT held that if department was aggrieved, it was appropriate for it to file an appeal against the earlier order of the lower Appellate Authority which has not been done and appeal against order of refund not maintainable.

In ‘Vetri Impex V. Commissioner of Customs (General), Mumbai’ – 2014 (1) TMI 1576 - CESTAT MUMBAI it was held that appeal before the Tribunal against the decision passed by Commissioner (General) under Regulation 20 or Regulation 22(7) of CHALR 2004 is not maintainable since there is no provision for the same.

Section 35B of the Central Excise Act, 1944 deals with the appeal to the Tribunal. In case of appeal to be filed appeal before the Tribunal the said Section laid down certain procedures to be adopted by the Department. Section 35B (1B) provides that The Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) may, by notification in the Official Gazette, constitute a Committee consisting of two Chief Commissioners of Central Excise for the purposes of this Act.

Section 35B (2) provides that the Committee of Chief Commissioner 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 authorized by him in this behalf (hereafter in this Chapter referred to as the authorized officer) to appeal on its behalf to the Appellate Tribunal against such order. 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. The explanation to Section 35B (2) provides that for the purposes of this sub-section, "jurisdictional Chief Commissioner" means the Chief Commissioner of Central Excise having jurisdiction over the adjudicating authority in the matter.

Every appeal under this section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the Commissioner of Central Excise, or, as the case may be, the other party preferring the appeal.

In ‘Commissioner of Central Excise, Jaipur – I V. Swastik Plyboard Limited’ – 2014 (2) TMI 153 - CESTAT NEW DELHI the Tribunal found that the appeal filed by the Revenue under his signature on 8.7.2005 against the order of Commissioner (Appeals) passed on 12.4.2004. The provisions of Section 35B were amended with effect from 13.05.2005 and according to the said provisions the order passed by the lower authorities were required to be reviewed by a Committee of Commissioners for forming their opinion about the legality of the said order and then taking a view for filing appeal against the order. Though the said provision was in force at the time of filing of appeal by Revenue on 8.7.2005 no such review order by a Committee of Commissioner seems to have been passed, inasmuch, as no such review order was attached along with appeal.   The appeals filed by the Revenue are not maintainable in the absence of any review order passed by a Committee of Commissioners.

In ‘Commissioner of Central Excise, Indore (M.P.) V. Ambika Refinery’ – 2014 (2) TMI 154 - CESTAT NEW DELHI the respondent has raised preliminary objection that Committee which authorize the appeal to be filed was one man Committee.   Shri Arvind Singh who was holding the charge of Commissionerate, Bhopal and Indore Commissionerate was signatory to the authorization.   The word ‘Committee’ always implies more than one Member to take a decision.   Even if one person holds the charge of two Commissionerates he does not become w members to form committee.   Accordingly the decision of the Committee has not yet seen the light of the day not comprising two Members therein.   The Tribunal dismissed the appeal filed by the Revenue.