TaxTMI 
TaxTMI 
2008 (11) TMI 63
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....e Revenue appeal without considering the merits of the case." 2. On 23-7-2008 notice was issued for final disposal by this Court. Though the appeal is listed for admission hearing, with consent of the learned advocates appearing for the respective parties the appeal is taken up for final hearing today. 3. The following substantial question of law arises for consideration: "Whether on the facts and in the circumstances of the case, Customs Excise and Service Tax Appellate Tribunal is justified in law in dismissing the appeal as being not maintainable?" 4. In light of the view that the Court is inclined to adopt, it is not necessary to set out the details of issues on which the adjudication order came to be made by the adjudicating author....
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....ribunal, even if there was non-compliance with procedural requirements of sub-section (2) of Section 35B of the Act. It was further submitted that even sub-sections (3), (4) and (5) of Section 35B of the Act were procedural in nature. That sub-section (6) of Section 35B of the Act provided for filing an appeal as prescribed by the Rules and in the prescribed form. Referring to the definition of 'Central Excise Officer' appearing in Section 2(b) of the Act, it was submitted that the said definition also included the Commissioner of Central Excise and, therefore, when the said words appear in sub-section (2) of Section 35B, the term 'Central Excise Officer' would also take within its sweep the Commissioner of Central Excise, who would be enti....
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....was invited to the Apex Court decision in the case of Collector of Central Excise, Vadodara v. Rohit Pulp Paper Mills- 1998(101) E.L.T. 5(S.C.). 8. The basic controversy revolves around correct construction of provisions of Section 35B, more particularly sub-section (2) of the said Section. Hence, for the sake of ready reference, the relevant extract of the provisions may be reproduced here-under: "SECTION 35B. Appeals to the Appellate Tribunal.- (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order - (a) a decision or order passed by the Commissioner of Central Excise as an adjudicating authority; (b) an order passed by the Commissioner (Appeals) under section 35A; (c) an order....
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....section (1) of Section 35B of the Act. 10. However, when one comes to sub-section (2) of Section 35B of the Act, it becomes clear that the right statutorily granted to file an appeal under sub-section (1) of Section 35B of the Act is defined by provisions of sub-section (2) of Section 35B of the Act when Commissioner intends to prefer an appeal challenging the appellate orders made by either Commissioner (Appeals) or the Appellate Commissioner. The Commissioner is not entitled to challenge the other orders specified in other clauses of sub-section (1) of Section 35B of the Act in exercise of powers under sub-section (2) of Section 35B of the Act. 11. Section 35B(2) of the Act is made up of two parts or two stages. The first stage is forma....
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.... the appeal himself, he need not form an opinion, is an incorrect reading of the requirement of the provision. There could be innumerable instances where, even after forming an opinion that the order of the appellate authority is not legal or proper, the Commissioner may decide not to prefer an appeal, for example in a case where the tax effect is low or meagre. Therefore, the statutory scheme envisaged by the Legislature cannot be read to operate differently in different situations: that formation of opinion is a necessary pre-requisite when the appeal is to be filed by an authorised officer, and is not a pre-requisite condition when the appeal is to be filed by the Commissioner himself. Therefore, the first stage regarding the formation o....
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....e power which can be delegated is the power which the first named person would be entitled to exercise. Hence, until and unless the Commissioner is entitled to file an appeal, there is no question of the Commissioner authorising another officer to file appeal on behalf of the Commissioner. The language of the latter part of sub-section (2) of Section 35B of the Act itself makes this more than abundantly clear when the provision uses the phrase 'to appeal on his behalf.' Hence it is not necessary to dilate any further on this aspect of the matter. 16. Therefore, if the record reveals, and the Tribunal on ascertainment finds, that an appeal has been preferred by Commissioner or the authorised officer without any prior formation of opinion by....