TMI Blog2013 (10) TMI 1048X X X X Extracts X X X X X X X X Extracts X X X X ..... rits 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. The orders passed by the designated authorities, by which the department authorises an appeal to be filed, is to avoid the filing of frivolous and unnecessary appeals - Such an order may be challenged, like a sanction in a criminal case only on the ground of non-application of mind, absence of material on which the mind has been applied by the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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 23.06.2005, the other member authenticated on 24.06.2005. There was no ad idem on the same date either on 23.06.2005 or 24.06.2005. In similar such situation, there was matter before Hon'ble High Court of Delhi in the case of Kundalia Industries 2012 (279) ELT 351 (Del.) where Hon'ble High Court has held that the decision of committee should be by a meaningful consideration which should be reflected on the note sheets in order to comply with the requirement of section 35 (2) of the Central Excise Act, 1944 in accordance with law. 2. When the proceeding before committee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (supra) the same question was raised as to whether the signing of the order by the Commissioners constituting the Committee of Commissioners on different dates would amount to non-application of mind as there was no meaningful consideration. It was found by this Court that there are no statutory rules providing that the Commissioner will sit on the same date and at the same time and take a decision authorising the Central Excise Officers to file the appeal. This Court held as follows:- "10. In Collector of Central Excise v. Berger Paints India Ltd 1990 (47) E.L.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. In the present case, the observation of the Tribunal, that the Commissioners did not take the decision on the same day and thus they were not ad idem at the same time to authorise the filing of appeal, apparently goes beyond the object of authorisation under Section 35B (2) of the Act. In order to avoid filing of frivolous appeals and unnecessary appeals, the legislature has provided for an authorisation by the Committee of Commissioners of Central Excise. The method and manner, in which such authorisation is obtained, is not an issue on which the Tribunal cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal 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 High Court, has proceeded to examine the judgment of Delhi High Court, which had the opportunity to peruse the records. There is nothing in the order of the CESTAT to show that it had examined the record in arriving at a conclusion that the auhtorisation was not valid. 7. Shri M.P. Devnath, appearing for the respondent-assessee has relied upon judgment of Supreme Court in Collector of Central Excise, Vadodara vs. Rohit Pulp Paper Mills, 1998 (101) ELT 5 (SC); judgment of Gujarat High Court in Commissioner of Central Excise Cus, Surat-I vs. Shree Ganesh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 passed by the designated authorities, by which the department authorises an appeal to be filed, is to avoid the filing of frivolous and unnecessary appeals. Such an order may be challenged, like a sanction in a criminal case only on the ground of non-application of mind, absence of material on which the mind has been applied by the authority, and lack of bonafides. The merit of the order of the Committee of Commissioner of Central Excise granting approval may not be subjected to challenge, as the appeal in any case has to be considered and decided on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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