2007 (8) TMI 365 - AT - Central Excise

Commissioner's Personal Appeal Valid under Central Excise Act Section 35B(2) - Filing Defects Curable

The Tribunal held that an appeal filed by a Commissioner of Central Excise himself, not through an authorized Central Excise Officer, is maintainable ... Appeal by the revenue under Section 35B(2) - power to authorize an officer to appeal 'on his behalf' - principal acting through agent - qui per alium facit per seipsum - distinction between right/power to file and manner of filing - curable procedural defect - statutory interpretation to advance legislative intentAppeal by the revenue under Section 35B(2) - power to authorize an officer to appeal 'on his behalf' - distinction between right/power to file and manner of filing - statutory interpretation to advance legislative intent - Whether an appeal filed directly by the Commissioner of Central Excise is maintainable under Section 35B(2) of the Central Excise Act, 1944. - HELD THAT: - The Tribunal examined the language of Section 35B(2) and the surrounding provisions in Chapter VIA, noting that subsection (2) confers on the Commissioner the power to have revenue appeals instituted and that other subsections deal with manner and procedural requirements. The Tribunal relied on its prior decision in Kay Iron & Works, where a Division Bench held that the Collector (Commissioner) could file the appeal himself instead of authorizing a subordinate officer. Applying established principles of statutory construction - that provisions should be read contextually to advance the purpose of the enactment - the Tribunal held that nothing in Section 35B(2) expressly prohibits the Commissioner from filing an appeal personally. To interpret the subsection as ousting the Commissioner's own right to file would frustrate the statute's object of enabling review of orders which are 'not legal or proper'. The Tribunal further invoked the principalagent doctrine to explain that authorisation to appeal through an officer does not exclude direct exercise of the right by the Commissioner. Thus the appeals filed by Commissioners are maintainable under Section 35B(2). [Paras 4, 11, 13, 14, 17]Appeal filed directly by the Commissioner of Central Excise is maintainable under Section 35B(2).Curable procedural defect - statutory interpretation to advance legislative intent - principal acting through agent - qui per alium facit per seipsum - Whether the defect of filing an appeal directly by the Commissioner (instead of through an authorized officer) is a curable procedural defect. - HELD THAT: - The Tribunal held that even if direct filing by the Commissioner were treated as a procedural defect, it would be curable. The bench observed that tribunals and courts should, where appropriate, permit defects to be cured rather than allow the department to suffer for procedural irregularities, particularly where the Registry or office had accepted the filing. This approach furthers the legislative purpose by preventing technicalities from defeating substantive rights of appeal. The Tribunal relied on established authorities endorsing remedial construction and the rule that no party should suffer for mistakes of the court or its office. [Paras 10, 16, 17]Any defect in filing by the Commissioner is curable and should be permitted to be remedied rather than result in rejection of the appeal.Final Conclusion: Reference answered: appeals instituted directly by the Commissioner of Central Excise under Section 35B(2) are maintainable; alternatively, any defect in such filing is curable so as to advance the legislative purpose of providing revenue a remedy against orders considered not legal or proper. Issues Involved:1. Whether the appeal filed by the Commissioner himself under Section 35B(2) of the Central Excise Act, 1944, is maintainable.Issue-wise Detailed Analysis:1. Maintainability of Appeals Filed by the Commissioner under Section 35B(2):Preliminary Objection:The respondents raised a preliminary objection arguing that Section 35B(2) of the Central Excise Act, 1944, only permits a Commissioner to 'direct any Central Excise Officer authorized by him to appeal on his behalf to the Appellate Tribunal' and does not allow the Commissioner to file the appeal himself. They contended that the appeals were not maintainable as they were filed contrary to the provisions of the law.Referral to Larger Bench:Due to conflicting decisions on the issue, the Single Bench of the Tribunal at Delhi referred the matter to a Larger Bench. Similarly, the Division Bench of the Tribunal at Kolkata also referred the issue to a Larger Bench.Legal Provisions and Arguments:- Section 35B(2) of the Central Excise Act, 1944: This section states that the Commissioner may direct any authorized Central Excise Officer to appeal on his behalf to the Appellate Tribunal if he believes an order is not legal or proper.- Respondent's Argument: The respondents argued that the section explicitly requires the Commissioner to authorize an officer to file the appeal, and thus, the Commissioner cannot file the appeal himself. They cited the principle that if the law prescribes a particular manner for doing something, it must be done in that manner or not at all. They relied on the Supreme Court judgment in Hotel & Restaurant Association v. Star India Pvt. Ltd. and other Tribunal decisions rejecting appeals filed directly by Commissioners.- Revenue's Argument: The revenue argued that the Tribunal's earlier decisions were incorrect as they ignored the Tribunal's decision in CCE, New Delhi v. Kay Iron Works (P) Ltd. They contended that a principal has the right to perform an action directly or through an agent, and since the Commissioner is the appellant, he can file the appeal directly. The Tribunal's decision in Kay Iron Works supported this view.Tribunal's Findings and Interpretation:- Calcutta Bench's View: The Calcutta Bench opined that the Commissioner, being a Central Excise Officer himself, could file the appeal directly. They noted that the power to authorize an action implies the power to act directly. The Bench emphasized that the statutory provision should be interpreted to advance the statute's intention, not negate it.- Statutory Interpretation: The Tribunal highlighted that Section 35B(2) does not explicitly prohibit the Commissioner from filing an appeal directly. They noted that the section relates to the right and power to file an appeal, not the manner of filing. The absence of a prohibition implies that the Commissioner can file the appeal himself.- Precedent and Legal Principles: The Tribunal referred to the Supreme Court's rulings emphasizing that statutory provisions should be interpreted to advance the legislature's intention. They cited cases like Giridhari Lal & Sons v. Balbir Nath Mathur and Municipal Corpn. of Delhi v. Jagdish Lal, which support the view that procedural defects should not defeat substantive rights.- Procedural Defects: The Tribunal concluded that even if filing the appeal directly by the Commissioner was considered a defect, it was purely procedural and curable. The Tribunal should have pointed out the defect at the time of filing, allowing the appellant to rectify it.Conclusion:The Tribunal held that an appeal filed by a Commissioner of Central Excise himself, not through an authorized Central Excise Officer, is maintainable under Section 35B(2) of the Central Excise Act. They further stated that any defect in such filing is curable.Pronouncement:The reference was answered accordingly on 27-8-07.