TMI Blog2014 (11) TMI 463X X X X Extracts X X X X X X X X Extracts X X X X ..... Senior Advocate is ruled out - Decided in favor of Revenue. - ST/551 TO 554/2011 - Misc. Order No.41659 to 41663/2014 - Dated:- 26-9-2014 - Shri P.K. Das and Shri R. Periasami, JJ. For the Appellant : Shri C. Dhanasekaran, Commissioner (AR) and Shri Parmod Kumar, JC (AR) For the Respondent : Shri N. Venkataraman, Senior Advocate along with Shri S. Muthuvenkataraman ORDER Per P.K. Das; The learned Senior Advocate on behalf of the respondent raised a preliminary objection in respect of maintainability of the appeal filed by the Revenue under Section 86 of the Finance Act, 1994 against the Order-in-Appeal Nos. 39, 40, 41, 42/2011 dated 30.8.2011 passed by the Commissioner of Central Excise Service Tax (Appeals). 2. The learned Senior Advocate submits that Section 86(2A) of the Finance Act, 1994 requires the Committee of Commissioners to review the order passed by the Commissioner (Appeals) and file appeal before the Tribunal. In the present case, there was no meeting of the Committee of Commissioners evidencing application of judicial mind at the time of arriving at the decision to prefer an appeal against the impugned order. Sub-section (2) and (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) ELT 413 (Tri. - Del.) (f) CCE Vs. Ramprakash - 2010 (19) STR 664 (Tri. - Del.) (g) CCE Vs. Super Cassettes Industries Ltd. - 2013 (294) ELT 587 (Tri. Del.) (h) CCE Vs. V.S. Exim Pvt. Ltd. - 2012 (283) ELT 206 (Tri. - Del.). 3. The learned Commissioner (AR) submitted that there is no provisions under Section 86 of the Finance Act, 1994 that there should be a meeting of the Committee for review of the order. Earlier, the respondent raised a preliminary objection on the maintainability of the appeal on the ground that the review order of the Committee of Commissioners did not bear the date. He submits that it is a curable defect which was complied with by the Department on production of the relevant file in their Miscellaneous Application filed before this Tribunal. Subsequently, the applicant changed their stand that there should be a meeting of the Commissioners constituting the Committee and such plea cannot be accepted. In any event, there is no guidelines issued by the Board and/or any rules framed by the Legislature in respect of functioning of the Committee of the Commissioners and therefore the Committee of the Commissioners cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 83A or Section 84, direct the Commissioner of Central Excise to appeal to the Appellate Tribunal against such order. (2A) The Commissioner of Central Excise may, if he objects to any order passed by the Commissioner of Central Excise (Appeals) under Section 85, direct the Central Excise Officer to appeal on his behalf to the Appellate Tribunal against the order. With effect from 11.5.2007, Section 86 reads as under:- (1) Any assessee aggrieved by an order passed by a Commissioner of Central Excise under section 73 or section 83A or Section 84, or an order passed by a Commissioner of Central Excise (Appeals) under section 85, may appeal to the Appellate Tribunal against such order. (1A) (i) The Board may, by notification in the Official Gazette, constitute such Committees as may be necessary for 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise, who would direct any Central Excise officer to appeal on his behalf to the Appellate Tribunal. 6.2 With effect from 11.5.2007 by Finance Act, 2007, the Board would constitute Committee consisting of two Chief Commissioners of Central Excise or two Commissioners of Central Excise, against the order of the Commissioner of Central Excise or Commissioner of Central Excise (Appeals) respectively to appeal to the Appellate Tribunal. If there is a difference of opinion of the Committee of Chief Commissioners or the Committee of Commissioners, it would be referred to the Board and the Chief Commissioner respectively to resolve the difference. 7. There is no dispute that the right of appeal of the Revenue is created under the statute and it is a substantive right. It is noted that with effect from 16.7.2001, the power of filing appeal before the Appellate Tribunal was vested on the Board or the Commissioner of Central Excise, as the case may be, and no dispute was raised except some procedural defects such as non-filing of authorization etc. The learned Senior Advocate fairly accepted that such procedural defects are curable. From 11.5.2007, the power of filing appeal w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be kept in mind while reviewing the orders. 7. Taking note of the judgments in the case of Kundalia Industries cited supra, Grand Prints Ltd reported in 2009(240) ELT 631(Tri-Del) and several such judgments of the Tribunal and the High Courts, the following precautions must be taken by the Commissioners constituting the committee while dealing with the review files- (i) The notings in the file and other relevant records should show meaningful consideration and application of mind by the committee. (ii) It should be ensured by the members of the committee that review cum authorization orders are passed in each case. (iii) Procedural infirmities in the review cum authorization viz. signature of one Commissioner, signature without date, name not mentioned below signature etc should be avoided. (iv) The Members of the Committee may make use of Video Conferencing for conducting meeting wherever feasible. 9. The learned Commissioner (AR) for Revenue submitted that the present appeal, was filed under the approval of Committee of Commissioners. In support of their contention, they placed the relevant pages of File C. No. V/2/327/2011-LRTG. It is noticed from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :- But here, we find that order of the Collector of Central Excise under Section 35E does not determine any issue affecting the statutory rights of the other side. The order of the A.C. favouring the appellant is not disturbed by the said order under Section 35E. It is only a direction to the Assistant Collector for filing an appeal. This order cannot also be equated with an order revising the order of the lower authority. The order of revision is the one finally determining the issue against the other side. The power of the Collector envisaged under Section 35E is not one of revision of the order of the lower authority but one directing filing of appeal before Collector (Appeals) to revise the order of the subordinate authority and a final order of revision is to be passed only by Collector (Appeals) after inviting cross-objection from the other side. We also note that in Section 35E(A) (this section is yet to come into force because it is to be operative from a notified date), the Collector of Central Excise is given the powers of revision where the specific provision for reasonable opportunity for representation has been provided under sub-section (3). In view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 bona fides. 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 merit by the Appellate Authority on merits under Section 35B of the Act. 11. For the aforesaid reasons we are unable to sustain the reasons of the CESTAT in dismissing the appeal filed by the revenue. 20. The Hon ble Gujarat High Court in the case of CCE Vs. Rupa Dyeing Printing Pvt. Ltd. - 2014 (301) ELT 334 (Guj.) held as under:- 4. Counsel further submitted that at the relevant time the Commissioner of Central Excise Customs, Surat-II ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that was taken by the Commissioner, instead of Committee envisaged under the circular. This was also view of the Bombay High Court. In any case, as held by the Bombay High Court it was procedural defect, appeal should not have been terminated only on this ground. Decision of Tribunal is reversed. Question is answered in favour of the appellant. Proceedings are remanded to the Tribunal for consideration on merits. Appeal is disposed of. 21. The learned Senior Advocate strongly relied upon the decision of the Hon ble Delhi High Court in the case of Kundalia Industries (supra) which has been considered by the Hon ble Allahabad High Court in the case of Devson Steels (supra). The other decisions are mostly by the Single Member Bench of the Tribunal and therefore there is no requirement for discussion. 22. In view of the above discussions, we hold that, as there was no guidelines or instructions, by the Board regarding the functioning of the Committee of Commissioners till the Boards Circular dated 23.11.2012, the right of appeal of the Revenue created under the statute cannot be defeated on the ground that there was no meeting of the Committee of Commissioners, when, it has sati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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