2000 (4) TMI 283 - AT - Central Excise

Tribunal emphasizes Section 35B(2) in dismissing stay petition & appeal, stresses procedural correctness

The Tribunal dismissed the stay petition and the appeal, emphasizing the mandatory nature of Section 35B(2) for authorizing appeals to the Appellate ... Appeal filed by Commissioner of Central Excise against order of Commissioner Issues:1. Proper authorization for appeal before the Appellate Tribunal CEGAT, Mumbai under Sections 35B and 35E of the Central Excise Act, 1944.Analysis:The judgment in question revolves around the authorization for an appeal before the Appellate Tribunal CEGAT, Mumbai under Sections 35B and 35E of the Central Excise Act, 1944. The case stemmed from an order passed by the Commissioner (Appeals) in favor of the assessee, allowing Modvat credit and setting aside imposed penalties. The Commissioner, feeling the order was incorrect, authorized an appeal to the Tribunal. However, a preliminary objection was raised by the assessee regarding the authorization being made under Section 35E instead of Section 35B. The contention was that the Supreme Court precedent established Section 35B(2) as a mandatory provision, necessitating careful consideration in filing appeals.The Tribunal analyzed the rival submissions and the nature of Sections 35B and 35E. It noted that Section 35E(2) pertains to appeals before the Commissioner (Appeals), while Section 35B(2) allows appeals to the Tribunal against orders of the Commissioner (Appeals). Despite the mention of CEGAT, Mumbai in the authorization, the Tribunal emphasized the mandatory nature of Section 35B(2) based on the Supreme Court's ruling in a previous case. The judgment highlighted the importance of exercising powers under Section 35B diligently, especially when challenging orders of equivalent authority, to avoid any casual approach in the appeal process.Ultimately, the Tribunal dismissed the stay petition and the appeal itself, citing the mandatory nature of Section 35B(2) and the need for careful consideration when authorizing appeals to the Tribunal. The judgment also addressed the procedural aspect of sending original authorizations for appeals, emphasizing the importance of proper documentation and instructions within the Commissionerate. This comprehensive analysis underscores the significance of adhering to legal provisions and precedents in the appeal process before higher authorities in excise matters, ensuring due diligence and procedural correctness.