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TMI Blog2013 (10) TMI 1048X X X X Extracts X X X X X X X X Extracts X X X X ..... i (CESTAT) dated 12.3.2013 passed in Appeal No.E/2644-2645/2005 by which the CESTAT dismissed the appeal filed by the revenue following the judgment of Delhi High Court in Kundalia Industries 2012 (279) ELT 351 (Del) where the Delhi High Court held that the decision of the Committee of Commissioners of Central Excise under Section 35B (2) should be by a meaningful consideration and which should be reflected on the note sheets in order to comply with the requirement of Section. 3. The short order of the CESTAT is quoted as below:- "This is another occasion that has come to notice where review order appearing at pages 4 to 10 of appeal folder indicates that while that order was authenticated by one of member Commissioner of the committee on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wn by Hon'ble Supreme Court and Delhi High Court whereas in the present case the Allahabad High Court being jurisdictional High Court had held in Central Excise Appeal Defective No.158 of 2010 (Commissioner, Central Excise, Kanpur vs. M/s Ufan Chemicals) connected with Central Excise Appeal Defective No.188 of 2010 (Commissioner, Central Excise, Kanpur vs. M/s Jagdish Rolling Works) decided on 5.9.2012 that the method and manner, in which such authorisation is obtained, is not an issue on which the Tribunal could in the absence of any objection make an enquiry to arrive at a finding whether such authorisation was given in accordance with the law. 5. Shri Shukla submits that in Commissioner, Central Excise, Kanpur vs. M/s Ufan Chemicals (su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revailed over the tribunal, in our opinion, would defeat the purposes of the rules. The language of the relevant Section and the rules as we have noticed, do not warrant such a strained construction. In the aforesaid view of the matter we are of the opinion that the tribunal was in error in dismissing the appeal on the ground that it did. In the premises, the judgment and order of the tribunal cannot be sustained. We accordingly set aside the judgment and order of the tribunal dated 10th November, 1987. In as much as, however, the tribunal has not disposed of the appeal on merits, we remand the matter to the tribunal for consideration of the appeal on merits and in accordance with law. The appeal herein is disposed of as aforesaid." 11. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of appeal the Committee of Commissioners, Central Excise have noticed the decision of the Punjab & Haryana High Court to the same effect. 14. For the aforesaid reasons, we find that the order dated 23.2.2010 dismissing the appeal and the order dated 31.3.2010 dismissing the recall application suffer from gross error of jurisdiction by the Tribunal in examining the validity of the authorisation, which it did not possess. 15. Both the appeals are allowed. The orders dated 23.2.2010 and 31.3.2010 passed by the Customs, Excise & Service Tax Appellate Tribunal are set aside. The matter is remanded to the Tribunal for a decision on merits in accordance with the law." 6. The CESTAT, instead of following the judgment of the jurisdictional Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner (Appeals) under Section 35A is not legal and proper, it may direct Central Excise Officers authorised by him in his behalf to Appellate Authority against the order. 9. In our view the opinion of the Board of Commissioner of the Central Excise under Section 35B is not justiceable on merits in Court. The opinion to be formed by the Board of Commissioners is a prima facie opinion and is not conclusive in nature which may be subject to challenge by the assessee on merits. If such an order is subjected to judicial review, it may give rise to taking ground to be agitated in almost every case and will cause unnecessary delay in disposal of the appeals under Section 35B of the Act. 10. It is fairly well settled that the orders p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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