2007 (3) TMI 432 - AT - Central Excise

Conflicting Decisions on Revenue Appeals Referral to Larger Bench

The Tribunal found conflicting decisions on the maintainability of appeals filed by the Revenue under Section 35B(2) of the Central Excise Act, 1944, ... Appeal to Appellate Tribunal - Maintainability of Issues:1. Maintainability of appeals filed by the Revenue under Section 35B(2) of Central Excise Act, 1944, signed by the Commissioner himself without recording his opinion.Analysis:The respondents raised a common preliminary objection regarding the maintainability of the appeals filed by the Revenue under Section 35B(2) of the Central Excise Act, 1944. They argued that the appeals were signed by the Commissioner himself without him recording his opinion that the impugned order is 'not legal and proper.' They contended that this action by the Commissioner is in violation of Section 35B(2) of the Act. The respondents relied on previous decisions of the Tribunal, such as CCE, Surat-I v. Shree Ganesh Dyeing & Printing Works and CCE, Surat-I v. Varun Dyeing & Printing Mills & Ors., to support their argument.The learned Advocates representing the respondents emphasized that when a power is required to be exercised in a particular manner, it must be done so strictly. They cited the Hon'ble Supreme Court's observation in the case of Hotel & Restaurant Association v. Star India Pvt. Ltd., highlighting that the power of the Commissioner under Section 35B(2) of the Central Excise Act, 1944, must be exercised as prescribed in the said section and not otherwise. They contended that the appeals filed by the Revenue should be dismissed on this preliminary ground.On the other hand, the authorized representative for the Revenue argued that the grounds of appeal indicated that the Commissioner did express his opinion that the impugned order is not legal and proper. He further pointed out that the Commissioner has the right to authorize a subordinate officer to file an appeal before the Appellate Tribunal, which implies that the Commissioner himself may also file an appeal. He referred to a previous Tribunal decision in the case of CCE. New Delhi v. Kay Iron Works (P) Ltd., which held that an appeal filed by the Collector himself, instead of authorizing a subordinate officer, is proper.After considering both sides and examining the relevant provisions of Section 35B(2) of the Central Excise Act, 1944, the Tribunal noted conflicting decisions on whether an appeal filed by the Commissioner himself is maintainable. Therefore, the Tribunal decided that the issue deserved to be resolved by a larger bench. The matter was directed to be placed before the Hon'ble President for constituting a Larger Bench to consider and decide on this preliminary objection raised regarding the appeals' maintainability.