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TMI Blog2008 (1) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... the Committee of Commissioners of Central Excise (in short 'the Committee') that the order passed by the Commissioner (Appeals) is not legal or proper and authorization of the Central Excise officer to file appeal before this Tribunal in terms of Section 35-B(2) of Central Excise Act, 1944. He submits that the appeal is not maintainable and liable to be rejected. The Revenue filed Miscellaneous Application opposing the preliminary objection and the respondent also filed objection against the Miscellaneous Application. 3. The learned Advocate submits that the appeal filed by the Revenue is not maintainable for the reasons as given below :- (a) No opinion of Committee of Commissioners was filed with the appeal; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as under :- (a) CCE, Belapur v. Coromandel Fertilizers Ltd. - 2007 (217) E.L.T. 269 (T) = 2007 (83) RLT 544 CESTAT (b) CCE, Bhubaneshwar-I v. Indian Plastics Ltd. & Another - 2007 (81) RLT 391 (c) CCE, Bangalore-I v. ITC - 2007 (210) E.L.T. 193 (T) = 2007 (79) RLT 251 (d) CCE, Coimbatore v. Shree Karthik Papers Ltd. - 2006 (206) E.L.T. 384 (e) CCE, Coimbatore v. L.G. Balakrishnan and Bros. - 2007 (211) E.L.T. 248 (Tri. - Chennai) = 2007 (6) S.T.R. 106 (Tri. - Chennai) (f) CCE, Delhi v. Bhabani Pigments Ltd. - 2002 (148) 323 (Tri.) 5. The learned DR on behalf of the Revenue, strongly oppo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re the appointed day, or the [Commissioner (Appeals)] under Section 35-A, is not legal or proper, direct any Central Excise officer authorized by him in this behalf (hereinafter in this Chapter referred to as the authorized officer) to appeal (on its behalf) to the Appellate Tribunal against such order." On a plain reading of the provisions of Section 35-B(2) of the Act, it appears that the Committee shall give its opinion and direct any Central Excise officer to file the appeal. I find that the proviso to Section 35-B(2) provides the constitution of Committee. The word "opinion" according to the Concise Oxford English Dictionary means 'judgement or belief based on grounds of short of proof'. It is a formal statement of professional advice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue and fanciful. Thus, if the discretionary power of the Committee is not exercised properly, resulting in abuse of process of law and causing injury to another person. The Tribunal in the case of CCE, Raipur v. Aero Agro Chemicals Industries Pvt. Ltd. reported in 2007 (217) E.L.T. 396 (Tri.) observed that provisions for review by Committee of Commissioners were introduced to bring about qualitative improvement in process and to prevent frivolous appeals. Therefore, the filing of appeal by the Revenue and compliance of provision of Section 35-B(2) would be looked into seriously. The learned DR produced the copy of the note sheet of the Department's file. I find that the Hon'ble Bombay High Court in the case of Bombay Chemical Ltd. (supra) h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner was a defect, it was only a purely procedural defect and the Tribunal should have pointed out that defect at the time of receipt of the appeals. If that had been done, the appellant would have been able to cure the defect. For the failure of the Tribunal or its office to do the same, revenue can not be made to suffer. The position is well settled." In view of the above decision of the Larger Bench, the Revenue should be given an opportunity to rectify the defects by way of filing the authorization with opinion and therefore, there is no need to discuss the case laws of the Tribunal cited by the learned Advocate. 8. In view of the decision of the Hon'ble Bombay High Court in the case of Bombay Chemicals Ltd. (supra), ..... X X X X Extracts X X X X X X X X Extracts X X X X
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