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TMI Blog2008 (12) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... ad as follows: Ex. Appeal No. ESM- 314/05 "Letter of Authorisation to file Appeal before CESTAT. Dated, Kolkata, the 10th August, 2005 The Committee of Commissioners of Central Excise, consisting of the Commissioners of Central Excise, Kolkata IV and Kolkata VII Commissionerates, constituted in terms of Notification No. 25/05-Central Excise (NT) dated 13-5-05 of CBEC, Dept. of Revenue, Ministry of Finance, Govt. of India for the jurisdiction of Commissioner of CE, Kolkata IV Commissionerate for the purpose of Section 35B(2) of Central Excise Act, 1944, being duly empowered so to do under Sec. 35B(2) ibid do hereby authorize the Commissioner of Central Exicse, Kolkata IV Commissionerate to file on its behalf an appeal with CESTAT, Eastern Zonal Bench, Kolkata against the Order-in-Appeal No. 62/Kol IV/2005 dated 29-4-05 passed by the Commissioner of Central Excise, Appeal-IV, Kolkata, after the Committee having reviewed the aforesaid Order-in-Appeal, and considered it appellable." Ex. Appeal No. EDM- 418/05 "Letter of Authorisation to file Appeal before CESTAT. Dated, Kolkata, the 25th August, 2005 The Committee of Commissioners of Central Excise, consisting of the Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on does not bear any date and both the Commissioners who have signed the authorization have not affixed any date below their signatures. The Appeal in the said case has been filed by the Superintendent, but the verification has been signed by the Commissioner declaring what is stated by the Superintendent to be true. The statement of facts and grounds of appeal in the same appeal have been signed by the two Commissioners and the same has been verified by the Superintendent stating what has been signed by the two Commissioners to be true. In the case of Appeal No. EDM-339/05, no authorization has been filed, but the appeal itself has been filed by the Committee of the two Commissioners. 5. In reply, the ld. SDRs have stated that as regards the discrepancies noticed and different formats adopted by the different Commissionerates for issuing authorizations and filing appeals, the present Member (Legal), Shri Vijay Singh is taking interest and has issued D.O. letters for rectifying such defects. As regards, the preliminary objections raised by the ld. Counsel and the ld. Consult ant that the authorizations are defective and therefore the appeals are not maintainable, the ld. SDRs have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Collector that the order against which the appeal is to be filed is 'not legal or proper'.(Para 12) (iii) The contention that where Commissioner decides to file the appeal himself, he need not form an opinion, is an incorrect reading of the requirement of the provision. Therefore, the first stage regarding formation of opinion is a mandatory requirement of Section 35B(2) of the Act which cannot be treated to be a procedural formality. In a given case, it would be always open to the Tribunal to call upon the Department to point out to the Tribunal as to whether an opinion has or has not been formed by the Commissioner before the appeal was preferred. The formation of opinion by the Commissioner has to be prior in point of time to the point of time when the appeal is preferred. (Para 13) (iv) However, this aspect of factual verification as to whether an opinion has been formed by Commissioner or not, is not to be confused with the powers of the Tribunal. The ld. Counsel for the Appellant Revenue had submitted during course of hearing that the Tribunal is not entitled to review the formation of opinion by the Commissioner. There can be no dispute as to the said proposition but that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mination. 11. We are aware of the fact that there are a number of decisions of the Tribunal and this Bench had occasion to pass few of those orders, where the Tribunal has considered as to whether the review under the law has been done within the prescribed time period, whether the appeals have been filed within the stipulated time period and whether the reviewing authority has formed an opinion as to whether the order appealed against is not legal or proper. We have also in the past looked at the constitution of the Reviewing Committee to see as to whether the same was constituted as per legal requirement or not. 12. It is surprising that the Coordinate Bench of the Tribunal at Delhi presided over by the Hon'ble President in the case of Bhushan Ltd. (cited supra) has proceeded to hold that the Tribunal has no power to adjudicate upon the validity of a review order and the authorization issued to file appeal. The decision of the said Coordinate Bench is contrary to the cited decision of the Gujarat High Court and also contrary to both the decisions of the Hon'ble Supreme Court cited above apart from being contrary to plethora of other decisions of the Tribunal on this subject. If ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easons therefor, the authorizations issued by the Committee are not valid in the eyes of law and the appeals filed in pursuance of such authorizations are not maintainable. Hence, we dismiss both the appeals filed by the Department. 15. As regards the submissions of the ld. SDRS that the Member (Legal) Shri Vijay Singh has written D. O. letters to remove the various defects noticed in the appeals filed by the Department, we observe that things have not improved at all and we come across number of such defective appeals with disturbing regularity. In the interest of justice and public revenue, we would like to advise the concerned Member (Legal) Shri Vijay Singh that sitting at Delhi and writing D. O. letters or visiting the Tribunal's Office/CDRs' Office in Delhi, is not going to improve matters. As a Member of a Revenue Board, he must undertake detailed inspection of some of the formations (not casual visits) and inspect the records relating to work of review and filing appeals, issue inspection notes, and ensure that the work relating to review and filing of appeal is done properly and in a uniform manner throughout the country (Operative portion pronounced in the open Court on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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