2010 (6) TMI 681

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....led without authorisation by the Committee of Commissioners. The authorisation dated 28-9-07 said to have been issued under sub-section (2) of Section 35B of the Central Excise Act was signed only by the Commissioner of Central Excise, NOIDA, authorising the Deputy Commissioner (Review) Central Excise, NOIDA to file an appeal on his behalf to the Tribunal. When the matter was heard on 30-9-2009 preliminary objection was raised by the respondent that the authorisation is not legal and proper and does not satisfy the requirement of Section 35B(2) of the Act. When the matter was heard on 9-11-2009, it was submitted on behalf of the department, that the Committee of Commissioners have taken a decision to file the appeal and that it was a mistak....

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....icular officer to file appeal before the Tribunal. He relies on the decision of the Hon'ble High Court of Punjab and Haryana in the case of CCE, Delhi III v. B.E. Office Automation Products Pvt. Ltd. reported in 2010 (249) E.L.T. 24 (P & H) and submits that mere signatures of two Commissioners in the file recommending filing of appeal before the Tribunal may not amount to forming the opinion as required under Section 35B(2). The authorisation dated 28-9-07 was signed only by one Commissioner constituting the Committee authorising the Deputy Commissioner (Review) Central Excise NOIDA to file the appeal on his (Commissioner NOIDA) behalf and the same can not be treated as decision of the Committee authorising the said Deputy Commissioner to f....

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.... the Hon'ble High Court of Karnataka in the case of CCE, Bangalore-II v. ITC Ltd. reported in 2008 (221) E.L.T. 331 (Kar.) = 2009 (13) S.T.R. 333 (Kar.) wherein it has been held that if there was any defect in the original authorisation given by Committee by Commissioner, a second authorisation could be filed by the appellant and the said authorisation has to be accepted for hearing the appeal by the Tribunal. 5. As regards the submission regarding filing of two appeals by the Department, he submits that the same will apply in a case where more than one person is aggrieved against the order of the original authority or the Commissioner (Appeals). In the present case, the department, duly authorised by the Committee of Commissioners has f....