TaxTMI 
TaxTMI 
2013 (6) TMI 537
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....ondonation of delay, the respondent/assessee filed a memorandum of Cross-Objection contending:- (a) That the decision set out in review Order No. 24/2012 (authorising filing of an appeal by Revenue) is invalid since the order was signed by the two Chief Commissioners comprising the Committee, on different dates; (b) That the formation of an opinion as to the error of the adjudication order and the desirability of preferring an appeal there from was not arrived at in a joint meeting of the Commissioners but was separately arrived at and recorded by the two Chief Commissioners on separate dates; and (c) The two Commissioners mechanically signed the notes put up by sub-ordinates, without due and independent application of mind by the authorised Chief Commissioners themselves; and these infirmities bidate the substantive and procedural discipline mandated by Section 86(2) of the Finance Act, 1994 (the Act). 3. Section 86(2) of the Act is as the relevant provision which confers discretion on the committee of Chief Commissioners. Section 86 enacts the facility of an appellate remedy to this Tribunal. Section 86(1A)(ii) enacts that every ....
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....brief facts of the case; a summary of the adjudication order; an analysis of the same indicating that the adjudication authority erred in dropping proceedings; and proposing that the Committee of Chief Commissioners review the adjudication order, for preferring an appeal; (d) The draft note was signed by the Superintendent, Sh. Arvind Kumar on 29.06.2012; by the Deputy Commissioner concerned on 11.07.2012; and by the Chief Commissioner (DZ) on 14.07.2012; (e) Simultaneously that the note, a draft order of review was drawn up; (f) After the signature of the CCE (DZ) was appended on the note on 14.07.2012, the relevant papers including the draft review order drawn up by the forwarded to the CCE, Chandigarh Zone; (g) The office of CCE (CZ) put up another note setting out the brief facts of the case; a summary of the adjudication order and its analysis. This note indicated that the CCE (DZ) had proposed review of the adjudication order, had signed the proposed review order and forwarded the same for concurrence of the CCE (CZ); (h) This office note of the CCE (CZ) appears to have been drawn up by the Superi....
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....e present adjudication. Sub section (3) enacts an extended period of limitation of four months (from the date on which the order to be appealed against is received by the committee of Chief Commissioners), for preferring an appeal to the Tribunal. Apparently an extended period of limitation is provided since the decision to appeal must be formed by a Committee and the process would consume some time. 9. On a true and fair construction of Section 86(2) of the Act, considered in the context in which the provision occurs, the inference is compelling that the decision to appeal is mandated to be preceded by due application of mind by a Committee comprising two Chief Commissioners, to avoid filing of unnecessary or frivolous appeals, in the interest of efficient revenue administration and of provisions of the Act. In the circumstances, due application of mind by each of the Chief Commissioners comprising the committee is a sine qua non for constituting a valid decision of the committee. The provision does not in terms require the Chief Commissioners comprising the committee to sit en banc. What all is required and mandatorily so is that the Chief Commissioners should both apply their....
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....bunal followed the decision of the Karnataka High Court in ITC Ltd. and rejected the "contention of the assessee, that the decision must be signed at a joint meeting of the Commissioners comprising the committee. - In Commissioner of Central Excise, Deihi-I vs. Kundalia Industries reported in 2012 (279) ELT 351 (Del.), the Delhi High Court was required to consider provisions of Section 35B (2) of the Central Excise Act, 1944. This Tribunal had dismissed Revenue's appeal on the ground that no opinion was formed in accordance with Section 35B. The record disclosed that after receipt of a copy of the order passed by the Commissioner (Appeals) the matter was examined at the level of Superintendent (Rev.) and the Assistant Commissioner (Rev.) who had opined that the order of the appellate Commissioner dated 15.10.2007 was incorrect and requires to be reviewed for preferring an appeal to the CESTAT. The committee of two Commissioners simply appended their signatures to the office note on 07.01.2008 and 08.01.2008. Para 5 of the judgment records an inference by the Court that there was no meeting of the two officers to consider the case and that the record does not disclos....
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.... the committee, the decision to prefer the appeal to the Tribunal, was incompetent. The High Court found that there was such a notification and remitted the matter to the Tribunal for a decision on merits. The decision of the High Court of Jharkhand in CCE, Ranchi vs. La Opala, RG Ltd. - 2012 (285) ELT 501 (Jhar.) merely follows and applies the earlier judgment of that Court in TRF Ltd. - In CCE, Kanpur vs. Ufan Chemicals - 2013 (290) ELT 217 (All.) Revenue's appeals were allowed and orders of this Tribunal (dated 23.02.2010 dismissing Revenue's appeal and another order dated 31.03.2010 dismissing the recall application) were set aside and the matter remitted to the Tribunal for a decision on merits. By the order dated 23.02.2010 this Tribunal had rejected Revenue's appeal on the ground that the decision by the committee of Commissioners was not taken on any particular day; the order was signed by the Commissioners on different dates disclosing absence of ad dem on the same day. Seeking recall of this order Revenue filed an application which was rejected on 31.03.2010. Appeals against both these orders were preferred to the Allahabad High Court. The Allahabad High C....
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....of mind by the two officers, to the issue and recording of an opinion, reflecting such application of mind. 12. The contrary view recorded by ld. single Member of this Tribunal in Shree Rajasthan Synthetics to the effect that there should be joint meeting of the Members of the committee on a specific date, is unsustainable as a trans contrary to the decision of the Karnataka High Court in ITC Ltd. and the decision of the High Court of Allahabad in Ufan Chemical. 13. We therefore conclude that the authorisation by the Chief Commissioners (DZ) and (CZ) though recorded on different dates i.e. 14.07.2012 and 23.07.2012 while at New Delhi and Chandigarh respectively, if a due application of mind to the relevant material forwarded to them by circulation, is not illegal only on account of the circumstance that there was no joint meeting and simultaneous recording of satisfaction. 14. There is however another aspect. The question is whether the two Chief Commissioners applied their mind and have recorded an informed conclusion / decision for preferring an appeal. As already noticed, the Chief Commissioner, Delhi on 14.07.2012 and the Chief Commissioner, Chandigarh on 23.07.2012 me....