TaxTMI 
TaxTMI 
TaxTMI 
2008 (6) TMI 17
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....d, which exhibited the fact as recorded by the Commissioner, Siliguri stating - "We may file appeal in view of the views in the Chief Commissioner's letter". For such cause, the Tribunal made two clear observations as under :- (a) There was no opinion rendered by the Committee to show that the impugned Order-in-Appeal was neither legal nor correct and no reasons were recorded to come to such a conclusion, (b) The Committee had not authorised the Deputy Commissioner who filed the Appeal. Observing that there was no valid authorisation, Appeal of Revenue was held to be not maintainable, for which that was dismissed. 2. Against the Order of Dismissal, Revenue went to the Hon'ble High Court of Calcutta challenging the same and that matter was registered as Case No. CEXA No. 27 of 2007. That was disposed by the Hon'ble High Court, vide Order GA No. 3355 of 2007 dated 29-11-07. The Hon'ble High Court found no reason to interfere with the Order passed by the Tribunal. It was observed that Tribunal was able to find out that Appeal of the Revenue was without authorisation and the only record which was produced was dealt by the Tribunal, for which dismissal of Appeal was made. The Hon'bl....
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....l. He was apparently posted as Commissioner of Central Excise, Haldia by the Board and recently by Office Order No. 120/2008 dated 31-5-2008, he has been transferred from that charge to P.A.C., Delhi. We are informed that he is yet to hand over charge. In between, he is stated to have taken additional charge of Commissioner of Central Excise, Siliguri on 4-6-07 in pursuance of Office Order No. 44/Gr.A/2007/CC dated 31-5-2007 issued by the Additional Commissioner of Central Excise in the Office of the Chief Commissioner of Central Excise, Kolkata. This Office Order indicates that the Chief Commissioner has allocated the additional charge of Central Excise, Siliguri Commissionerate to Shri C.M. Mehra, Commissioner of Central Excise, Haldia. The 3 Miscellaneous Applications have been filed before us by Shri C.M. Mehra in his purported Capacity as Commissioner, Central Excise, Siliguri. 8. We have heard the learned J.C.D.R. Dr. Gautam Ray, the learned J.D.R. Shri Y.S. Loni and Shri V.N. Thette, learned Additional Commissioner from the Chief Commissioner's Office. We have also heard Shri N.K. Chowdhury, learned Advocate for the Respondents. As the issue is of some importance, we have a....
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....t merely by issue of office orders contrary to the statutory provisions. He further adds that lack of jurisdiction cannot be cured by consent or waiver as has been held by the Hon'ble Supreme Court in Sushil Kumar Mehta v. Govind Ram Bohra - (1990) 1 SCC 193. 11. We find that the Board has issued Notification Nos. 14/2002-C.E.(N.T.) dated 8-3-2002 specifying jurisdictions of Chief Commissioners, Commissioners and Commissioners (Appeals). Under the same, the jurisdiction of Commissioner, Haldia is specified as District of Midnapore, part of Howrah District and Andaman and Nicobar Islands whereas the jurisdiction of Commissioner, Siliguri is specified as Districts of Darjeeling, Jalpaiguri, Coochbehar, North Dinajpur, South Dinajpur, Malda and State of Sikkim. Thus the two jurisdictions are mutually exclusive and separate. We also find that there is no notification by the Board posting Shri Mehra as Commissioner of Central Excise, Siliguri. 12. The proviso to the above-cited Notification No. 14/2002-C.E. (N.T.) reads as under "Provided that a Chief Commissioner of Central Excise may, within his jurisdiction, specify, the jurisdiction of a Commissioner of Central Excise (Appeals) a....
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....ner is appointed by the Board to hold a specific charge as provided under the statutory provisions, he cannot exercise any of the statutory powers under the Central Excise Law. He can at the most, exercise administrative and financial powers. The Board has no authority to delegate its power to appoint a Commissioner and specify his jurisdiction. The Central Government has not delegated Board's Authority to the Chief Commissioner in this regard. Hence, in the absence of such delegated authority, the Chief Commissioner cannot assign statutory work of a separate jurisdiction without a valid delegation of Board's power in this regard by the Central Government through a notification in the Official Gazette as required under Section 37A of the Act. 16. As such, we hold that Shri C.M. Mehra cannot act as a Commissioner of Central Excise, Siliguri under the Central Excise statute not being appointed to and vested with such jurisdiction by the Board and hence, he has no locus standi to file the present Miscellaneous Applications in an appeal pertaining to the Siliguri jurisdiction. Appeal on Merit 17. We also find that the Department fails to succeed on merit in this case. The Respondent....
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....e Tribunal as far as the merit of the case goes. Validity of the Decision of the Committee of Commissioners 20. We observe from the records of the case that the decision by the two Commissioners to file an appeal is not an independent decision in exercise of the powers vested in them. One Commissioner has recorded on the Note Sheet at page No. 5 of File No.V(2)96/CESTAT/A&R/COM/SLG/05, "We may file appeal in view of the views in the CC's letter" and the other Commissioner has only signed the Note Sheet two days later on 20-5-06. Such noting does not indicate that the Commissioners have exercised their independent mind in taking the decision to file Appeal against the Order of the lower Appellate Authority. On the contrary, they have agreed to file the Appeal merely because of the views expressed in the letter from the Chief Commissioner's Office and hence, the decision of the Committee is not a result of application of independent judicial mind. Moreover, both the Commissioners have not anywhere recorded in the file notings that the Order appealed against is not legal or proper. In view of the foregoing, the decision to file Appeal taken by the Committee of two Commissioner....