TMI Blog2012 (6) TMI 826X X X X Extracts X X X X X X X X Extracts X X X X ..... A.K.Sinha, Additional Commissioner of Central Excise, Patna. There is no authorization by the Committee of Commissioners as required under Section 86(2) (a) of the Finance Act, 1994 in favour of the officer who filed the appeal. Therefore, the appeal is dismissed. 3. On behalf of appellant it was fairly admitted that the appeal was in fact filed by the Commissioner of Central Excise, Patna, one of the members of the Committee of Commissioners and not by the person authorised by the Committee of Commissioners as required under Section 86(2A) of the Finance Act, 1994 which reads as follows :- The Committee of Commissioners may, if it objects to any order passed by the Commissioner of Central Excise (Appeals) under Section 85, direct any Central Excise Officer to appeal on its behalf to the Appellate Tribunal against the order. 4. On facts it was explained that the necessity of filing the appeal by the Commissioner himself arose due to unexpected non-availability of the authorised officer and to avoid setting in of limitation. The stand of the appellant is that the particular requirement in Section 86(2A) of the Finance Act,1994 is that the Committee of Commissioners, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the appeal was also the delegator and hence he was found competent to present the appeal in place of the authorised officer. In respect of judgment of the Karnataka High Court in the case of I.T.C. Limited a similar situation was existing because the delegator in that case was the Committee of Commissioners which had preferred the appeal in place of the authorised officer. 8. It is obvious that the facts of the two judgments considered above were different and in those facts it can be easily held that the filing of the appeal was by the delegator himself and therefore, suffered from no defect. In the present case authorisation was by a Committee of Commissioners of which only one member the Commissioner of Central Excise, Patna preferred the appeal in place of the authorised officer. Hence, in the present case the requirement of law was not carried out in strict terms. Hence we have to consider the other submission advanced on behalf of the appellant that non-compliance of the latter part of the provision should not be held as fatal to the appeal and the provision which indirectly requires filing of the appeal only by the authorised officer should be treated as directory requi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence-processual, as much as substantive. (See Sushil Kumar Sen Vs. State of Bihar, 1975 (1) SCC 774. 14. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner for the time being by or for the Court in which the case is pending, and if, by an Act of Parliament the mode of procedure is altered, he has no other right than to proceed according to the altered mode. (See Blyth Vs. Blyth (1966(1) AII.ER 524 (HL). A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. (See Shreenath and Anr. Vs. Rajesh and Ors. (AIR 1998 SC 1827). 15. Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. 16. It is also to be noted that though the power of the Court under the proviso appended to R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... objection of the Committee of Commissioners contemplates formation of its substantial opinion after due application of mind, and is hence mandatory. It must be performed by the Committee of Commissioners of Central Excise and not by any other authority. This must be done before authorizing any Central Excise Officer for the purpose of filing the appeal. However, the latter part which requires directing any Central Excise Officer to act as the authorised officer for filing an appeal is clearly a procedural provision. The Committee of Commissioners may or may not direct any officer and instead may choose to file the appeal themselves. But once the Committee directs or authorises a particular Central Excise Officer to prefer an appeal on its behalf, ordinarily the authorised officer alone should prefer the appeal on behalf of the Committee of Commissioners. But in case for some unforeseen reasons the appeal has to be preferred by some other officer of Central Excise such as one of the Commissioners comprising the Committee of Commissioners, that in our view would be only a defect of procedure which shall not render the appeal invalid. Such defect may either be ignored in the facts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15. The purpose of Section 86 (2A) is to ensure that an appeal is preferred only against such orders which are found to be objectionable by a Committee of Commissioners of Central Excise i.e. by high ranked officers of the concerned Department. Thereafter once the appeal is filed pursuant to such decision, before the Tribunal, the law requires consideration of the appeal on merits which alone can serve the cause of justice. For not considering the appeal on merits there must exist very strong and compelling reasons permitted by law. In the scheme of the Act there are no such legal provisions which require dismissal of the appeal in a summary manner as has been done by the learned Tribunal. Clearly in the present case, the procedural requirement of filing of the appeal by a designated officer has been given overriding effect over substantive provisions and over the interest of justice which generally requires decision of an appeal on merits. 16. Hence, in our considered view the order under appeal is against law. The learned Tribunal should have given opportunity to the appellant to correct the memo of appeal by showing that the appeal has been preferred by the Committee of Comm ..... 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