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TMI Blog2014 (4) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... or the purposes of this Chapter. (ii) Every Committee constituted under clause (i) shall consist of two Chief Commissioners of Central Excise or two Commissioners of Central Excise, as the case may be. (2) The Committee of Chief Commissioners of Central Excise may, if it objects to any order passed by the Commissioner of Central Excise under section 73 or section 83A, direct the Commissioner of Central Excise to appeal to the Appellate Tribunal against the order ..." 2. The Committee of the Chief Commissioners may -under Section 86 (2) - direct that an order passed under Sections 73 or 83A be appealed to the CESTAT. The present case, involves the legality of the exercise of this power. The Respondent (LR Sharma) provides services relating to replacement of water pipelines for the Delhi Metro Rail Corporation, Delhi Jal Board and other entities, but was not paying service tax according to the provisions of Section 65(39a) of the Finance Act, 1994. On 15.10.2010, the Commissioner of Service Tax ("the Commissioner") issued a show cause notice to the Respondent asking why an amount of Rs.22,60,09,148, leviable under Sections 66, 67 and 68, of the Act should not be recovered on accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... levant issues and of agreement with the administrative analysis at lower levels, as to the appropriateness of preferring an appeal to the Tribunal. In identical circumstances, the Delhi High Court in Kundalia Industries (paragraph 5 and 6) and this Tribunal in V.S. Exim Pvt. Ltd. have held that mere appending of signatures by the Commissioners comprising the committee on note sheets drawn up by subordinate officers is no compliance of the statutory provision. Shri Amresh Jain, ld. DR would exert to point out a distinction between Section 35B(1A)(2) of the Central Excise Act, 1944 and Section 86(2) of the Act. According to the ld. DR under the Central Excise Act, the committee if of the opinion that an adjudication order or an appellate order is not legal and proper may direct preferring of an appeal to the Tribunal. Section 86(2) of the Act enjoins that the committee, if it objects to an adjudication order, may direct an appeal to be preferred to the Tribunal. In view of the difference in the language of the two distinct provision conferring discretion on the committee under the different enactments, even if Chief Commissioners (DZ & CZ) in the present case had merely appended thei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch a case, what is required of the Chief Commissioners is to consider the material prepared, and if an endorsement is provided, the scope of the review of the CESTAT ought to end there. The entire exercise ought to be seen together, such that the opinions prepared by the subordinate officers and the endorsement of the Chief Commissioner are part of the same exercise, and thus, once the approval has been granted, it cannot be faulted on the ground that the Chief Commissioner did not independently record any reasons. 6. On the other hand, learned counsel for the Respondent argues that there is a minimum threshold for the application of mind in such cases. The Chief Commissioner is mandated by Section 86(2) to consider the various factors before filing an appeal, and such consideration by the Chief Commissioner (and not his subordinates) must appear from the record. It is argued that since in this case there is no independent appraisal of the facts by the Chief Commissioners, the application of mind envisaged in any administrative proceeding is lacking. For this, learned counsel relies upon the decisions in Indian Oil Corporation v. Collector Central Excise, 2006 (202) ELT 37 (SC) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise v. Berger Paints, (1990) 2 SCC 439, in the following words: "6. Having regard to the purpose of these rules as we conceive it, namely, to ensure that there was an application of mind to the points in respect of which the question for filing an appeal arose and that the appeal was duly authorised by the Collector, and was filed by the person authorised by the Collector in order to ensure that frivolous and unnecessary appeals are not filed, we are of the opinion that in the present context and in view of the terms of the rules and the purpose intended to be served, the appeal was competent and was duly filed in compliance with the procedure as enjoined by the rules. It has to be borne in mind that the rules framed therein were to carry out the purposes of the Act. By reading the rules in the manner canvassed by Dr. Pal, counsel for the respondent, before us which had prevailed 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." 8. The reason for the introduction of Section 86(2), rather than permitting the filing of appeals by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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