TaxTMI 
TaxTMI 
2015 (1) TMI 1050
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....ate is that for filing appeal by the Department, against the Order of the Commissioner, under Section 86(2) of the Finance Act, 1994, the Committee of Chief Commissioners constituted thereunder, should first form an opinion that the Order is not legal and proper and thereafter authorize the proper officer to file appeal against the said Order. It is his submission that the Review orders dated 23-11-2010 signed by the Chief Commissioner of Central Excise, Shillong and Chief Commissioner of Central Excise, Kolkata, and later authorization to the Commissioner of Central Excise and Service Tax, Shillong to file appeals before the CESTAT, for determination of the issues mentioned in the Review order, are not in accordance with law. The ld. Advocate further submitted that the Chief Commissioner of Central Excise, Shillong has signed the review Order on 16-11-2010, whereas, the Chief Commissioner of Central Excise, Kolkata, though signed the review Order, but has not appended any date to the signature, indicates that the review Order has not been passed by the Committee of Chief Commissioners but by individual Chief Commissioner, hence, contrary to the provision of Sec. 86(2) of Finance A....
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....opped the proceeding against the respondent. All the five Orders-in-Originals dated 27-8-2010 were received in the office of the Chief Commissioner on 2-9-2010. 6. Rebutting the argument that there has been non-application of mind, by the Committee of Chief Commissioners, the ld. Special Counsel has submitted that Review Section of Chief Commissioners' office had examined the de novo order and prepared the brief of the case as detailed in note sheets pages 1 to 7 of the relevant file (Order No. 02/Commr/ST/2010, dated 27-8-2010); on the basis of which the Chief Commissioner has accepted the said note by recording as "agreed" on 11-11-2010 and directed the Review Section to take necessary action. A draft Review Order under the direction of the Chief Commissioner was accordingly prepared which he had signed on 16-11-2010. Similar procedure had been followed in respect of other files also. It is his contention that the draft Review Orders, with the respective files, were later forwarded to the Chief Commissioners of Central Excise, Kolkata who has accepted and approved the same on 23-11-2010 and returned the files to Chief Commissioner's office, Shillong, from where the Review....
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....e and the members do not necessarily have to meet and put their signatures on the same day and at one place. Further, he has submitted that in the event the members of the Committee agreed with proposal, mere signing of the proposed note/document is an indication of according approval and application of mind. 9. In support of his contention that the Chief Commissioners need not hold a meeting in forming an opinion or raising objection, as the case may be, for filing the review appeal against an order, the ld. Special Counsel has referred to the decision of Hon'ble Allahabad High Court in the case of Commr. of Central Excise, Kanpur v. Ufan Chemicals [2013 (290) E.L.T. 217 (All.)] and Commissioner of Customs, Central Excise & Service Tax v. M/s. Devson Steels - 2013-TIOL-985-HC-ALL-CX = 2014 (301) E.L.T. 295 (All.). 10. It is his submission that if the Chief Commissioner of Shillong has to come down to Kolkata or Chief Commissioner, Kolkata has to visit Shillong then apart from a huge and wasteful expenditure of tax payers' money, a lot of time for the journey also to be spent, this often considered as against the public interest. Therefore, in such cases, the Chief ....
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.... of Chief Commissioners of Central Excise may, if it objects to any order passed by the Commissioner of Central Excise under Section 73 or Section 83A [* * *], direct the Commissioner of Central Excise to appeal to the Appellate Tribunal against the order : 13. The present Misc. Applications are filed by the Respondent challenging the maintainability of the appeals filed by the Revenue against the Orders of the Commissioner alleging that the same are filed without compliance of the aforesaid provision. 14. On a simple reading of Section 86 of the Finance Act, 1994, it is clear that aggrieved by an order passed by the Commissioner or Commissioner (Appeals), an assessee, may file an appeal under sub.-sec. (1) or the Committee of Chief Commissioners or Commissioners, if objects to the Order passed, direct the Commissioner of Central Excise to file appeal before this Tribunal under sub-section (2) of Section 86 of the Finance Act, 1994. The procedure for filing appeal has been prescribed under the said provision and also under the Customs, Excise and Service Tax Appellate Tribunal (Procedure) Rules, 1982. As per the said provisions, after filing the appeal eit....
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....cribed for disposal of the appeal. 19. The argument advanced by the ld. Advocate for the respondent is that since the Committee of Chief Commissioners, has not held any meeting and signed the orders on different dates, indicates non-application of mind, and being contrary to the provisions prescribed under Section 86(2) of the Finance Act, 1994, consequently, the appeals filed by the Revenue are not maintainable. 20. To examine the said plea, relevant original files have been called for from the respective Chief Commissioners' office. We have considered the notesheet pages appended to the said files. We find that after receipt of the order in the Chief Commissioners' office, at Shillong, the subordinate staff has initiated the note submitting a preliminary analysis of the entire facts and findings of the adjudicating authority in the de novo proceeding and proposal for necessary action based on the said analysis. The notings have moved from the lower level i.e. level of Inspector to the Chief Commissioner. We find that the Chief Commissioner has agreed to the said analysis and noting; consequently, the proposed review application has been placed before the Chief Com....
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....xxxxxxxxxxxxxxxxxxxxxx [(1B) (i) The Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) may, by notification in the Official Gazette, constitute such Committees as may be necessary for the purposes of this Act. (ii) Every Committee constituted under clause (i) shall consist of two Chief Commissioners of Central Excise or two Commissioners of Central Excise, as the case may be.] (2) [The Committee of Commissioners of Central Excise may, if it is] of opinion that an order passed by the Appellate [Commissioner of Central Excise] under Section 35, as it stood immediately before the appointed day, or the [Commissioner (Appeals)] under Section 35A, is not legal or proper, direct any Central Excise Officer authorised by him in this behalf (hereafter in this Chapter referred to as the authorised officer) to appeal [on its behalf] to the Appellate Tribunal against such order. 23. A careful analysis of the said sub-section (2) of Section 35B of CEA, 1944, it is amply clear that if in the opinion of the Committee of Chief Commissioners that the order is not legal and proper, it may direct for filing appeal....
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....has to be considered and decided on merit by the Appellate Authority on merits under Section 35B of the Act. 11. For the aforesaid reasons we are unable to sustain the reasons of the CESTAT in dismissing the appeal filed by the Revenue. 12. The Central Excise Appeal is allowed. The matter is remanded to the Customs, Excise & Service Tax Appellate Tribunal, New Delhi to decide the appeal on its merits." 25. The aforesaid judgment is self-explanatory. It has been delivered on 21-10-2013 i.e. after the decision of the co-ordinate Bench at Delhi in Japan Airlines International Co. Ltd.'s case (supra) and applicable to the facts and circumstances of the present case. 26. Also, we find that the Hon'ble Calcutta High Court in the Excise Appeal filed by the Revenue bearing No. CEXA 50 of 2008 - Commissioner of Central Excise, Kolkata-I v. M/s. N.K. Gosain & Co Pvt. Ltd. [2009 (247) E.L.T. 88 (Cal.)] held as : "The Court : Heard the learned Advocate for the parties. The order which has been passed by the learned Tribunal is not tenable as the Tribunal held that out of the Committee consisting of two Chief Commissioners, one Chief Commissioner gave a view t....