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Commissioner of Central Excise, Customs & Service Tax Raigad Versus SRK Enterprises Mumbai

2016 (9) TMI 484 - CESTAT MUMBAI

Maintainability of appeal - authorizing a designated Central Excise officer to file an appeal - composition of the Committee of commissioners – compliance with section 35B(2) of Central Excise Act, 1944 – Held that: - The plea for substitution by new authorization and deemed acceptance of earlier appeal has been made by the appellant-Commissioner. Without doubt, he is the appellant but with the authorized committee having designated a specific officer to handle the appeal, a plea entered by one .....

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Ravindran, Member (Judicial) and Shri C J Mathew, Member (Technical) Applicant - Represented by : Mr. S.R. Nair Enquiry Officer (A.R.) Respondent - Represented by : Mr. Vinay Ansurkar, Advocate ORDER Revenue has filed appeal against order no. US/221/RGD/2011 dated 29th August 2011 in which first appellate authority, Commissioner of Central Excise (Appeals), Mumbai Zone - II, has invoked section 80 of Finance Act, 1994 to set aside the penalty imposed under section 76 and 78 of Finance Act, 1994 .....

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al Excise, Belapur instead of Commissioner of Service Tax - II, Mumbai, was not in accordance with the constitution specified in the notification, the competent Committee, vide its order dated 30th July 2012, re-authorized the same officer to file the appeal. This Miscellaneous Application, filed by the appellant-Commissioner prays that the later authorization be taken on record in lieu of the one issued on 8th December 2011 and that the appeal filed on 13th December 2011 be deemed as having bee .....

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ed by appellant-Commissioner, received on 28th August 2012, relies upon the decision of the Hon ble High Court of Bombay in Commissioner of Central Excise v. Coromandel Fertilizers Ltd [2009 (237) ELT 453 (Bom.)] and those of the Tribunal in Commissioner of Central Excise v. LML Ltd. [2008 (229) ELT 453 (Tri-Del.)] and Commissioner of Central Excise, Indore v. Lloyd Insulation (I) Ltd [2007 (216) EL 201 (Tri.-LB) wherein the defects, having been held as curable, were not allowed to stand in the .....

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. It is contended that the dispute referred to the Tribunal by Revenue had originated with a Committee which was not competent to decide. It is alleged that the present application had been made with intent to avoid placing the appellant-Commissioner within the discretionary jurisdiction of the Tribunal and to confer a new lease of life to the unauthorized appeal filed earlier by circumventing the procedure prescribed by law. It is the contention of the Learned Counsel that review is a conscious .....

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Tri-Del.)] which followed the decision of the Larger Bench of the Tribunal in re Lloyd Insulation (India) Ltd. (supra) holding that: 16. Further, in these cases, if at all the filing of the appeals directly by the Commissioner was a defect, it was only a purely procedural defect and the Tribunal should have pointed out that defect at the time of receipt of the appeals. If that had been done, the appellant would have been able to cure the defect. For the failure of the Tribunal or its office to d .....

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is being attempted to be by-passed and, more particularly, on an issue that does not entail such far-reaching consequence as to warrant tacit approval to an unauthorizedly filed appeal. We are also concerned about the circumstances and the manner in which this is attempted as it is on a rare occasion that delay in filing an appeal is not condoned. 7. In all ages, administration of tax has been characterised by the unequal footing in which the individual is placed vis-vis the might of the Sate. M .....

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re not sacrificed at the altar of expediency and technicality. In disposing off miscellaneous applications in which the prayer is out of the ordinary, the Tribunal should move with deliberate caution lest there be outcomes that are prejudicial to the safeguards enjoyed by the citizenry. 8. The decisions cited on behalf of Revenue are, severally, only a tiny chink in the bastion erected by the wisdom of the supreme legislative organ to ensure that rule of law prevails over rule of men. One more i .....

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wever, only those that favour the assessee are and are undertaken to conform to the statutory pre-requisite of appeal. Consequently, any indulgence permitted to officials of the tax administration in the exercise of this power must be all the more rigorous than otherwise. This is an imperative as an appeal by Revenue is not a burden to them but ties up the assessee in legal wrangles despite having been held as compliant by lower departmental authorities. The decision to continue the adversarial .....

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review. These could be the reduction of the collegium to one as occurred in re Coromondel Fertilizers or the failure to furnish the opinion of the reviewing authority as in re LML Ltd or the presumption that an authorizing authority did not require authorization to file appeal as in re Lloyd Insulations (I) Ltd. The common thread in all these decisions was the curability of the defects by the reviewing authority without revisiting the review itself. 11. In the matter before us, a committee, bel .....

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