TMI Blog2016 (8) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... a note sheet is only an internal file document and certainly not the legally prescribed document envisaged under Section 35B (2) of the Act. - Revenue appeal dismissed. - E/758/2007 - Final Order No. A/30565/2016 - Dated:- 17-5-2016 - Ms. Sulekha Beevi, Member (Judicial) and Mr. Madhu Mohan Damodhar, Member (Technical) Shri R.R. Bangar, Authorised representative for the appellant. Shri Karan Talwar, Advocate for the respondent (s) ORDER 1.1. The facts, in brief, of this case are that the respondents are engaged in the manufacture of M.s. strips / rods and CTD bars falling under Chapter sub-heading Nos. 7211.59 and 7214.90 of the Central Excise Tariff Act, 1985. The respondents had exercised their option to avail of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... therefore proceed to address this issue before going into the merits of the case. 3. The learned Advocate for the respondent Sri. Karan Talwar contended that the authorization order issued under Section 35B of the Central Excise Act, 1944 should have been signed by all the Commissioners in the Committee of Commissioners formed under 35B(1B) of the Act. This not having been done the Authorization order 25/2007 dated 25.10.2007 is not valid in the eyes of law and, the appeal filed by the department therefore is not legally maintainable. 4. The Ld AR appearing for the department Shri R.R. Bangar sought to refute this objection by submitting that although the said Authorization is not signed by both the Commissioners of the Committee, n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n by both the Commissioners constituting the said Committee. This has certainly has not been done. We find that the impugned Authorization dated 25.10.2007 has been signed by only one Commissioner of the Committee. We are afraid that the submission by the AR that the note sheet from the file from which the said authorization was issued was signed by both Commissioners, will not help his case since a note sheet is only an internal file document and certainly not the legally prescribed document envisaged under Section 35B (2) of the Act. 7 We find that our aforesaid view finds sustenance in a number of case laws. In the case of CCE, Hyderabad Vs Arch Pharmalabs [2009(239) ELT 381 (Tri. Bang.)] has held as follows:- 9 . On perusal of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gle Commissioner of Central Excise cannot exercise this power. For the benefit of the Commissioner of Central Excise, Hyderabad-IV, who mindlessly assumed the power and issued the above authorisation order, we shall reproduce the text of sub-section (2) of Section 35B of the Act: (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 this behalf (hereafter in this Chapter referred to as the authorised officer) to appeal [on its behalf] to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -CESTAT-MUM] (ii) CCE C, BBSR-II v. Gupta Steels Pvt Ltd. [2007 (8) S.T.R. 248 (Tri. - Kolkata)] (iii) CCE, Belapur v. Coromandel Fertilizers Ltd. [2007 (217) E.L.T. 269 (Tri. - Mumbai) ] He submits that in the cited judgments, it has been held that the Revenue is required to file Review Petition before the Commissioner of Central Excise and not before the Commissioner (Appeals) and such appeal is not maintainable. It has also been held in the case of CCE, Belapur v. Coromondel Fertilizers Ltd. (supra) that the appeal filed by only one Commissioner and not the Committee of the Commissioners is not maintainable in terms of the Section 35B of the Central Excise Act, 1944. 6 . We have carefully considered the submissions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prerequisite to the direction to any Central Excise Officer to file an appeal. As no such direction was produced, the appeal was dismissed. 5. In the present case also, Section 35B(2) has not been complied with. The documents tendered across the Bar during the hearing of these appeals also do not indicate compliance of the provisions of Section 35B(2) of the Act. 6. The appeals are, therefore, dismissed. 11. In the light of the above discussions we are of the considered opinion that the appeal filed by department is not maintainable and is required to be dismissed in limine , which we hereby do. The appeal stands dismissed. (Operative part of this order was pronounced in court on conclusion of the hearing) - - TaxTMI - ..... X X X X Extracts X X X X X X X X Extracts X X X X
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