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TMI Blog2016 (4) TMI 796X X X X Extracts X X X X X X X X Extracts X X X X ..... s the stocks recorded in its statutory prescribed record and found a shortage of 6.607 metric ton in the NSS ML and 0.788 metric ton in SS ML variety of paper. It is also stated that a quantity of 204 Kg. of SS ML was found excess and the same was seized under a panchnama. There are also some deficiencies detected by the officers of the appellant. It was noticed by the officers of the appellant that sludge had been removed without reversing of his price in scrap arising out of MODVATABLE capital goods without payment of central excise duty. They found 62.314 metric tons of paper in excess without having been accounted for in its RG -1 and the same was seized. Show-cause notice dated 15.4.2008 was issued to the appellant and its Manager(Commercial) and Executive (Central Excise) as to why : I. duty of Rs. 21,398/- for clearance of capital goods should not be recovered from them under Rule 57U of the Central Excise Rule, 1944 (hereinafter called "the Rule"); II. duty of Rs. 98,462/-(B.D.) and Rs. 531(Cess) for clearance of different varieties of papers; III. duty of Rs. 2,14,049/- for clearance of packing material on MODVAT inputs; IV. duty of Rs. 3,17,960/- for clearance of capi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmercial) and Executive (Central Excise). 4. Challenging the said order-in-original, the assessee along with its officers preferred appeal before the Commissioner (Appeals), Central Excise, CESTAT, Bhubaneswar but the order of the concerned authority was upheld in appeal vide order dated 20.1.2006 in respect of NSS Map Litho paper but set aside the balance portion of the adjudication order including the personal penalty imposed on the Manager(Commercial) and Executive (Central Excise) of the respondent company. 5. Challenging the said order dated 20.1.2006 passed by the Commissioner (Appeals), Central Excise, CESTAT, Bhubaneswar, the present appellant filed three separate appeals along with stay petition before the learned CESTAT which are registered as Excise Appeal No. 674 of 2006-against the appellant, Excise Appeal No. 250 of 2007-against the Manager(Commercial) and Excise Appeal No. 251 of 2007-against the Executive (Central Excise) of respondent-company. Be it stated that vide common order dated 13.5.2008 learned CESTAT dismissed the Excise Appeal Nos. 250 and 251 of 2007 with observation that the appeal filed pursuant to the authorization from the Commissioner, Bhubaneswar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed principle of law. He further submitted that the learned CESTAT has failed to apply judicial mind to the facts of the case and landed in a wrong conclusion. Learned CESTAT has erred in law to appreciate that presence of authorisation by Commissioner of Central Excise in the record itself and at the same time dismissed the appeal without going through the same. The authorization as appearing in sub-section (2) of Section 35B of the Act is more directory one but not mandatory and learned CESTAT has failed to appreciate this principle of law. 7. Relying upon the decisions in Montreal Street Railway Co. v. Normandin 1917 AC 170, L. Hazari Mal Kuthiala v. Income-tax Officer, Special Circle, Ambala Cantt. and another reported in AIR 1961 SC 200 and Bhavnagar University v. Palitana Mill Pvt. Ltd., AIR 2003 SC 511 learned counsel for the appellant-Department submits that provision of sub-Section (2) of Section 35B of the Act being directory, have not been properly appreciated by CESTAT. 8. It is the bone of contention that the grant of authorization of the Committee of Commissioners in terms of subsection( 2) of Section 35B of the Act is completely an intra7 departmental administration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the mandatory provision has not been followed by the appellant/Department, rightly learned CESTAT has passed the impugned order observing that it is infructuous and subsequent rectification of such defect cannot cure the mandatory provision as required under law. He submitted that decision of the Hon'ble Apex Court cannot be pressed into service in the present facts and circumstances inasmuch as the said decisions were rendered on different facts and circumstances but not identical issues raised in this case. According to him after amendment of concerned provision of the Central Excise Act, 2005 , the Committee of Commissioners have been entrusted the task of authorization of either Commissioner or any Officer to file the appeal and the purpose of such authorization is not merely authorization of Officer but also take decision to file appeal after deliberating on the facts and law involved in the particular case. So mere observance of the provision of law cannot be said to be empty formality but it is to be taken as a mandatory provision to be complied. So, he submitted to confirm the order of the learned CESTAT and dismiss the appeal. Points for Discussion 10. At the time of adm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 16.5.2008 (Dr. Chittaranjan Satapathy) TECHNICAL MEMBER" 13. From the foregoing orders, it appears that the impugned order in this appeal has been passed on 25.4.2012 relying upon the order dated 13.5.2008 passed in Excise Appeal Nos.250 & 251 of 2007. Both the orders only indicate that no proper authorization has been filed by the appellant-Department to file the appeal, resulting in disposal of the appeals. It is the contention of the learned counsel for the appellant that they have filed the authorization dated 24.6.2008 vide Annexure-3 with the affidavit by the appellant in CESTAT on 29.1.2013. On going through the said authorization, it appears that the same was purportedly made to file appeal against the order dated 20.1.2006 passed by the learned Commissioner of Appeals before the CESTAT on the ground specified in another document and authorized the Additional Commissioner of Central Excise, Bhubaneswar-I to file appeals before the CESTAT, Kolkata. On going through the order dated 13.5.2008 passed in Excise Appeal Nos.250 & 251 of 2007, it appears it was passed much before the authorisation was made. The impugned order shows that relying on the order dated 13.5.200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ny duty allowed to be utilised towards payment of excise duty on final products under the provisions of this Act or the rules made thereunder and such order is passed by the Commissioner (Appeals) on or after the date appointed under section 109 of the Finance (No. 2) Act, 1998; Provided further that the Appellate Tribunal may, in its discretion, refuse to admit an appeal in respect of an order referred to in clause (b) or clause (c) or clause (d) where- (i) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or (ii) the amount of fine or penalty determined by such order, does not exceed fifty thousand rupees. (2) The Committee of Commissioners of Central Excise may, if it is of opinion that an order passed by the Appellate Commissioner of Central Excise under section 35, as it stood immediately before the appointed day, or the Commissioner (Appeals) under section 35A, is not legal or proper, direct any Central Excise Officer authorised by him in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch amendment in sub-section (2) of section 35B of the Act cannot be made to be fraustrated by arraying the same as directory provision. When the group of Commissioners apply their mind to the order in appeal passed under section 35A of the Act, there may be difference of opinions and accordingly the grounds for appeal will be examined on the proper question of fact and law. 16. It is reported in the decision of Privy Council in Montreal Street Railway Co. v. Normandin 1917 AC 170 where Their Lordships have observed : "..........The question whether provisions in a statute are directory or imperative has very frequently arisen in this country., but it has been said that no general rule can be laid down, and that in every case the object of the statute must be looked at. The cases on the subject will be found collected in Maxwell on Statutes, 5th Edn., p. 596 and the following pages. When the provisions of a statute relate to the performance of a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience, or injustice to persons who have no control over those entrusted with the duty, and at the same time w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act to prefer appeal. It is needless to say that application of judicial mind to the facts and law of the case by the concerned Committee of Commissioners of Central Excise is a condition precedent for filing appeal. Any non-application of mind in rendering opinion to file appeal may cause serious impact on the public exchequer or on the economic growth of the country. Since the authorization would be to one of the Central Excise Officers, the word "may" as appearing in sub-section (2) of Section 35B of the Act cannot be said to be discretionary or directory but it is a mandatory provision and should be read as "shall". We do not find force with the submission of learned counsel for the appellant-Department to the effect that such word "may" is a directory one and as such the contention is jettissioned. Since it is a fiscal statute, it requires strict interpretation, no word can be construed otherwise and purposive interpretation is the call of the day. CONCLUSION 20. Now adverting to the facts of the case and points of law as discussed by us, we are of the view that the authorisation made in Annexure-3 of the affidavit filed by the appellant to prefer appeal without same b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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