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2016 (8) TMI 5 - CESTAT HYDERABAD

2016 (8) TMI 5 - CESTAT HYDERABAD - TMI - Maintainability of revenue appeal - Held that:- it is clear that the direction to any Central Excise Officer Authorized by the Committee of Commissioners will, as per Section 35B(2), be necessarily have to be issued by way of an authorization 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 .....

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cal) 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 scheme described in sub-rule (3) of Rule 96 ZP of Central Excise Rules, 1944, for full .....

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period from January 1998 to March, 2000 demanding a total duty of ₹ 51,01,200/- , interest and penalty. 1 .2 The aforesaid show-cause notices were adjudicated by the Additional Commissioner vide Order-in-Original No.67/2002 dt. 12. 2002 wherein he had confirmed a duty of ₹ 51,01,200/- under Rule 96ZP of Central Excise Rules, 1944 and Section 11A(1) of Central Excise Act, 1944 along with interest. He had also imposed penalty of ₹ 35,000/- under Rule 96ZP(3) of Central Excise Rul .....

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cate 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 s .....

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35B (1B) (i) The Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) may, by notification in the Official Gazette, constitute such Committees as may be necessary for the purposes of this Act. (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 Commissioners of Central Excise may, if it is of opinion that .....

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e Committee of Commissioners will, as per Section 35B(2), be necessarily have to be issued by way of an authorization 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 hel .....

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y the Commissioner cannot be called as proper authorization. Even if the wordings in the statute indicate "direct any Central Excise Officer authorized by him", To our mind there seems to be an error in drafting the said sub-section, as a committee comprises of more than one person and authorization to file an appeal can be given by them only. It is a fact that the decision to file an appeal against the impugned order is taken by a Committee of Commissioners. We find that the reliance .....

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ntral Excise Act, the power to review an order passed by Commissioner (Appeals) under Section 35A of the Act and to authorise any Central Excise Officer to prefer an appeal against such order to the Appellate Tribunal is vested in the Review Committee (Committee of Commissioners of Central Excise) constituted by the CBEC under sub-section (1B) of Section 35B. Any single Commissioner of Central Excise cannot exercise this power. For the benefit of the Commissioner of Central Excise, Hyderabad-IV, .....

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in this behalf (hereafter in this Chapter referred to as the authorised officer) to appeal [on its behalf] to the Appellate Tribunal against such order. [Provided that where the Committee of Commissioners of Central Excise differs in its opinion regarding the appeal against the order of the Commissioner (Appeals), it shall state the point or points on which it differs and make a reference to the jurisdictional Chief Commissioner of Central Excise who shall, after considering the facts of the or .....

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n Order signed by the Commissioner to file the appeal is not correct. In terms of the Notification, the Authorization has to be issued by two Commissioners. Therefore the authorization order and the appeal filed by the Commissioner before the Commissioner (Appeals) is not correct. He submits that the issue involved in the matter is no longer res-integra as the same has been decided in the assesee s favour in a large number of judgments. With regard to the Authorisation being not in order, he rel .....

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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 made by both the sides. We find that the orders passed by both the authorities are not correct in law. The Authorisation Order signed by the Single Commissioner is not maint .....

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