TaxTMI 
TaxTMI 
2014 (12) TMI 834
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..... Sharma-1", for short) wherein, the following observations have been made: "7. The Court has considered the submissions of the parties. The scope of enquiry of a Court into administrative acts is limited. This is all the more so when the act in question is neutral (i.e. the filing of an appeal), rather than an order placing a demand upon the assessee or otherwise prejudicial to the interests of the assessee. An order under Section 86(2) is for the filing of an appeal, which will be considered on merits by the CESTAT. Whilst there is a requirement for a meaningful procedure to be followed in all administrative acts, including the present one, the Court must view the deliberation by the concerned authority in context. In this case, the respective Superintendents of the two Chief Commissioners prepared detailed notes concerning the facts, law applicable and the need for a reconsideration of the order of the Commissioner. This is not disputed. Equally, it is not disputed that these notes were placed before the Chief Commissioners. The fact that this was done independently for the two Chief Commissioners, who did not sit together, is, as indicated above, not in question and does not a....
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....oner (Appeals) was not legal and proper, appeal should be filed. The noting in the relevant record are produced. A perusal thereof would reveal that after the receipt of the copy of order passed by the Commissioner (Appeals), the matter was examined in the Department at the level of Superintendent (Rev.) and Assistant Commissioner (Rev.) who had vide note dated 4th February, 2007 had given their reasons stating "in view of the above grounds, Order-in-Appeal No. 116/C.E./DLH/2007 dated 15-10-2007 of Commissioner (Appeals) appears to be incorrect, illegal, unfair and merits to be reviewed for filing appeal before the Hon'ble CESTAT. Submitted for consideration by the Committee of Commissioners of Central Excise, Delhi-I and II constituted vide Notification No. 25/2005-C.E. (NT)" 5. This was the opinion of the aforesaid two officers who rightly submitted the matter for consideration by the Committee of Commissioners. However, the Commissioner of Central Excise-I and Commissioner of Central Excise-II who allegedly constitute the Committee of Commissioners, simply appended their signatures to the aforesaid note on 7th January and 8th January, 2008 respectively. This shows that ther....
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....gnoring the context, i.e. the detailed consideration of the issue by the subordinate officers also involved in the process. The cases relied upon by the Respondent are of no assistance. Neither Kundalia (supra), which concerned authorization under Section 35 of the Central Excise Act, 1944 (requiring the Chief Commissioners to be of the opinion that the order in question is illegal and improper, as opposed to only objecting to the order under Section 86(2)), nor ITC Limited (supra), deal with the standards for review under Section 86(2) or the law as laid down in Berger (supra). In fact, recently in Commissioner of Central Excise v. Ufan Chemicals, 2013 (290) ELT 217 (All), the Allahabad High Court, while considering a similar issue, observed that the precise method and manner of obtaining authorization is not an issue, but only a limited inquiry was permitted to determine whether such authorization was given in accordance with law, which, as discussed, is clearly the case in these proceedings". 6. The aforesaid reasoning indicates that case of Kundalia Industries (supra) was distinguished on the ground that it was concerned with Section 35 of the Central Excise Act, 1944, but, th....
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....Central Excise (Appeals), it shall state the point or points on which it differs and make a reference to the jurisdictional Chief Commissioner who shall, after considering the facts of the order, if is of the opinion that the order passed by the Commissioner of Central Excise (Appeals) is not legal or proper, direct any Central Excise Officer to appeal to the Appellate Tribunal against the order. xxx" 8. Learned counsel for the assessee on the said aspect relies upon the order dated 02.11.2012 passed in W.P.(C) No.6918/2012, L.R. Sharma & Co versus Commissioner of Service Tax and Ors.("L.R. Sharma-2", for short) to the following effect: "3. The petitioner challenges the maintainability of appeal before the CESTAT in respect of the order-in-original made by the Commissioner. The grievance urged is that a review of the order by the committee' of Chief Commissioners in terms of Section 86(2) of the Finance Act, 1994 never validly look place. On various grounds the concerned authorities looked into the matter on different dates and in fact, the order was made by an authority which did not have jurisdiction to do so and to whom the concerned authorities could not have delegated s....