TMI Blog2015 (1) TMI 1050X X X X Extracts X X X X X X X X Extracts X X X X ..... places, accepted and agreed to the analysis of the lower formation and recorded their objection against the said order and directed the Commissioner for filing of the appeal before the Tribunal. Thus, in our opinion, there is sufficient compliance of the provisions of Section 86(2) of Finance Act, 1994. - appeals filed by the Revenue-Appellant are maintainable being filed in accordance with the procedure prescribed under Section 86(2) of the Finance Act, 1994. - Decided in favour of Revenue. - ST/ 2, 4, 5, 6 & 7/2011 - Misc. Order Nos. M/71608-71611/KOL/2013 - Dated:- 2-4-2014 - Dr. D.M. Misra, Member (J) and Dr. I.P. Lal, Member (T) Shri D.K. Acharyya, Special Counsel, for the Appellant. Shri J.K. Mittal, Advocate, for the Respondent. ORDER These five Misc. Applications are filed by the respondent seeking dismissal of appeals filed by the Commissioner of Central Excise, Shillong. 2. The ld. Advocate for the respondent Shri J.K. Mittal, advancing the argument for the respondent has submitted that aggrieved by five Orders-in-Original Nos. 02-06/COMMISSIONER/ST/2010, dated 27th August, 2010, the department had filed five appeals under Section 86(2) of the Fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Del.), (ii) C.C.E., Noida v. V.S. Exim Pvt. Ltd. - 2012 (283) E.L.T. 206 (Tri.-Del.) = 2014 (34) S.T.R. 469 (Tri. - Del.), (iii) C.C.E., Delhi-III v. B.E. Office Automation Products Pvt. Ltd. - 2010 (249) E.L.T. 24 (P H), (iv) CST., Delhi v. L.R. Sharma - Final Order No. 56165/2013, dated 26-4-2013 reported in 2013-TIOL-944-CESTAT-DEL = 2014 (33) S.T.R. 319 (T) and Board s Circular No. 390/Review/2/2012/JC, dated 23-11-2012. 5. Per contra, the ld. Special Counsel Shri D.K. Acharya for the Revenue has submitted that by the Order dated 12-12-2007, the Commr. of Central Excise had confirmed demand of ₹ 11.43 crores along with interest and penalty on the respondent on account of rendering the taxable service viz. Commercial Industrial construction services. On appeal, this Tribunal had remanded the matter for de novo adjudication directing re-determination of the taxable value, and consequently, re-quantification of the Service Tax. It is his submission that the respondent, M/s. NBCC themselves had admitted to their Service Tax liability on 1.8% of the contract value, which was also taken note by this Tribunal while passing the Order. In the impugned de novo Order No. A- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... par. In the former case, the requirement is : formation of an opinion , whereas, in the later case, under the provisions of Section 86(2)of the Finance Act, 1994, the pre-requisite for filing the appeal is the objection . Further, the learned special Counsel submitted that in the present case the Superintendent s note has not been mechanically signed by the higher officers, without application of mind, but consciously the Chief Commissioner, Shillong had agreed with the proposal of the lower formation. In the present case, the Chief Commissioner had clearly applied his mind and agreed with the office note. The ld. Special Counsel has vehemently argued that there is no Rule to the effect that two Chief Commissioners had to sit together at one place and on the same day and required to take a decision for filing the appeals by dictating an Order like a Court proceeding; therefore, what is important under Section 86(2) of the Finance Act, 1994 is that the Committee of Chief Commissioners should record their objection, for filing the appeal. 8. He has submitted that application of mind by the Members of the Committee is possible by various methods like video conferencing, circulati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Tribunal, where one of the Chief Commissioner of the Committee has disagreed with proposal for filing the appeal. It is his submission that since this Tribunal is situated within the jurisdiction of Calcutta High Court, therefore, the said judgment is binding on this Tribunal. 12. Heard both sides and perused the records. We find that the Revenue has filed five appeals against the respective Orders passed by the Commissioner of Central Excise, Customs and Service Tax, Shillong, who has dropped the proceeding against the respondents in the de novo proceeding. These appeals have been filed under Section 86(2) of the Finance Act, 1994. The said provision reads as follows : SECTION 86. Appeals to Appellate Tribunal. - (1) Any assessee aggrieved by an order passed by a Commissioner of Central Excise under Section 73 or Section 83A [* * *], or an order passed by a Commissioner of Central Excise (Appeals) under Section 85, may appeal to the Appellate Tribunal against such order within three months of the date of receipt of the order. (1A)(i) The Board may, by notification in the Official Gazette, constitute such Committees as may be necessary for the purposes of this Chapte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Hon ble Apex Court and High Courts that while answering the preliminary issues on maintainability, jurisdiction, etc. the merit of the case also needs to be considered, to avoid remand by the Appellate forum on merits, once, the finding on maintainability, jurisdiction etc., is set aside by the said Appellate authority. 17. In the present case, keeping in view the provisions/procedures laid down for disposal of the appeal filed under Section 86 of the Finance Act, 1994, the Tribunal accordingly opined that the preliminary objections raised by the respondent on the maintainability of appeals would be addressed while disposing the appeal filed by the Revenue. However, the applicant pursued the present Misc. Application before the Hon ble High Court at Calcutta by filing Writ Petition No. 10200(W) of 2013. The Hon ble High Court observed as : The Court therefore directs the appellate tribunal to allow the petitioner to take the point of maintainability of the said appeal and once such point is raised, the appellate tribunal shall consider the same before proceeding any further to decide the matter on merit. 18. Accordingly, the Misc. Applications challenging the maint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22. We have carefully analyzed the said decisions vis-a-vis the provisions contained in Section 86(2) of the Finance Act, 1994. We find that the Hon ble High Court at Delhi in Kundalia s case was confronted with an Excise Appeal and while interpreting Section 35B(2) of CEA, 1944 and consequently recorded an observation that there should be an opinion required to be formed before directing review of the order. Section 35B(2) of CEA, 1944 reads as follows : SECTION 35B. Appeals. - (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order - (a) a decision or order passed by the Commissioner of Central Excise as an adjudicating authority; (b) an order passed by the Commissioner (Appeals) under section 35A; (c) an order passed by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) (hereafter in this Chapter referred to as the Board) or the Appellate Commissioner of Central Excise under Section 35, as it stood immediately before the appointed day; (d) an order passed by the Board or the [Commissioner of Central Excise], either before or after the appointed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... L 985 HC-ALL-CX = 2014 (301) E.L.T. 295 (All.), following its earlier judgment in the case of Ufan Chemicals s case and taking note of the Kundalia Industires case, observed as : 9. In our view the opinion of the Board of Commissioner of the Central Excise under Section 35B is not justiciable 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 passed by the designated authorities, by which the department authorizes 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 gran ..... X X X X Extracts X X X X X X X X Extracts X X X X
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