2012 (11) TMI 378 - AT - Central Excise

Revenue appeals dismissed for lack of authorization under Central Excise Act

The Tribunal dismissed the appeals filed by Revenue against an order-in-appeal due to the lack of proper authorization under Section 35B(2) of the Central ... Setting aside of the duty demand confirmed against the company as also penalty imposed upon the company as well as its Directors - Held that:- These appeals are not maintainable as proper authorisation as envisaged under Section 35B(2) of the Central Excise Act, 1944 was not obtained before filing of the appeals. Neither the authorisation nor the annexure to the authorisation, memorandum of appeal bears signatures of the other Commissioner who purportedly was member of the Committee of Commissioners constituted vide Notification No. 25/2005-C.E. (N.T.), dated 13-5-2005. Appending of signatures on the note forwarded by the subordinate officers is not sufficient compliance of the mandate of Section 35B(2) of the Central Excise Act, therefore, instant appeals have been filed in violation of mandate of Section 35B(2) of the Central Excise Act, 1944 - appeals are not maintainable and dismissed - Signed copy of the order be placed on each of the concerned file. Issues:1. Authorization under Section 35B(2) of the Central Excise Act, 1944 for filing appeals.2. Compliance with the mandate of Section 35B(2) by the Committee of Commissioners.3. Maintainability of the appeals filed by Revenue.Analysis:1. The appeals were filed by Revenue against an order-in-appeal accepting appeals against duty demand and penalties imposed on a company and its directors. The respondent raised a preliminary objection regarding the lack of proper authorization under Section 35B(2) of the Central Excise Act, 1944. The authorization was signed only by one Commissioner, leading to a challenge on the maintainability of the appeals.2. The Tribunal examined the authorization process and found that the Committee of Commissioners did not collectively form an opinion before filing the appeals, as required by Section 35B(2). The Committee's involvement was deemed necessary to direct authorized officers to appeal against the order of the Commissioner (Appeals). The Tribunal noted that the Committee's actions were akin to routine bureaucratic procedures without a thorough review of the case record, leading to a lack of compliance with the statutory mandate.3. The Tribunal concluded that the appeals were not maintainable due to the failure to comply with the requirements of Section 35B(2) of the Central Excise Act, 1944. Citing judgments from the Hon'ble Delhi High Court and the Hon'ble Punjab & Haryana High Court, the Tribunal emphasized the importance of proper authorization by the Committee of Commissioners. As a result, the Tribunal dismissed the appeals filed by Revenue, stating that they were not maintainable under the law.In summary, the judgment focused on the lack of proper authorization under Section 35B(2) of the Central Excise Act, 1944 by the Committee of Commissioners, leading to the dismissal of the appeals filed by Revenue against the order-in-appeal. The Tribunal highlighted the necessity for the Committee to collectively form an opinion before directing authorized officers to appeal, emphasizing compliance with statutory requirements for appeal filings.