TaxTMI 
TaxTMI 
2009 (4) TMI 146
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....rms of Section 35B(2) of the said Act, 1944 in August 2006 that present appeals had been filed on 20th September 2006. However, necessary document in that regard remained to be filed and to cure the technical defect in that regard, the present applications have been filed alongwith the copy of the note sheet regarding the decision of the Committee of Commissioner in August 2006 as also further decision of the committee reiterating its earlier decision regarding the formation of opinion and authorization to file such appeals. 4. The respondent has not filed any reply to the application. However, learned Advocate appearing for the respondent has strenuously argued opposing the application. 5. It is the contention of the learned DR on behalf of the appellants that it is merely a technical defect that is sought to be cured by these applications by placing on record the necessary decision in terms of Section 35B(2) of the said Act and in that regard our attention was sought to be drawn in the case of Commissioner of Central Excise, Bangalore-II v. I.T.C. Limited reported in 2008 (221) E.L.T. 331 (Kar.) = 2009 (13) S.T.R 333 (Kar.). Learned DR further submitted that there is no sta....
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....of filing of the appeals. 7. The undisputed facts in this case are that the appeals were filed before the Tribunal on 20-9-2006 by Shri Piyush Patnaik, Commissioner, Central Excise, Delhi-III. The note sheet with was prepared by the Superintendent of the Central Excise on 23-8-2006 disclose submission to the Committee of Commissioners for appropriate decision regarding the filing of the appeal against the order passed by the Commissioner (Appeals) in the matter in hand. The said note further discloses endorsements by Commissioner, Central Excise, Delhi-III to the fact that "we may file appeal" and thereunder signature by Commissioner, Rohtak. The signature by the Commissioner, Central Excise, Delhi-III is dated 31-8-2006 whereas that of the Commissioner, Rohtak is dated 11-9-2006. 8. The decision of the Committee of Commissioners in the matter held in February 2009 refers to the factum of filing of the appeals in the matter in hand by the Commissioner, Central Excise, Delhi-III, Gurgaon and reiteration of earlier decision of the Committee of Commissioners in the matter of formation of opinion regarding the need to file the appeals and authorizing the Commissioner, Central Exc....
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....ach and every issue and, therefore, it is difficult to accept the contention on behalf of the respondent that the opinion formation by the Members regarding need for filing of appeal by way of circulation of the relevant paper cannot be considered as the opinion formed in terms of provisions of Section 35B(2) of the said Act. Copy of the note sheet placed on record in the matter in hand clearly discloses the submission made by the Superintendent of Central Excise to the Committee of Commissioners for appropriate opinion to be formed regarding the order of the Commissioner (Appeals) in the matter in hand and about the challenge to the same in the appeal. It further discloses for the purpose of filing appeals a clear opinion was formed by the Members of the Committee, firstly by Commissioner, Central Excise, Delhi-III and further assented to by another Commissioner namely, Commissioner, Rohtak by affixing his signature next to the signature of Commissioner, Central Excise, Delhi-III. This apparently discloses an opinion was formed by the Members of the Committee of Commissioners to file appeals against the order of the Commissioner (Appeals) in the matter in hand. 12. The law as c....
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....o file the appeal. It is the contention on behalf of the respondent that section 35B(2) specifically requires authorization by the Committee of Commissioners to the Excise Officer to file the appeal and there was no such authorization by the Committee, the appeal is not maintainable. Referring to the note sheet, it was contended that the same does not disclose authorization to the Commissioner, Central Excise, Delhi-III to file appeal nor the so-called decision in February 2009 can validate an action by the officer who was not competent to file the appeal. On the other hand, it is the contention of the learned DR on behalf of the Department that the note sheet discloses such authorization to the Commissioner, Central Excise, Delhi-III and the same is also apparent from the decision of the Committee in February, 2009. 15. The point that the Officer filing the appeal must have an authorization under section 35B(2) is not in dispute. What is sought to be disputed is that there was no authorization granted to the Officer who had filed appeal. 16. The provision of law on the subject, undoubtedly speaks of direction to "any Central Excise Officer authorized by him in this behalf" t....
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....by Commissioner, Central Excise, Delhi-III, Gurgaon, we find no substance in the contention raised by the learned Advocate, that the appeal has been filed by the officer without any authority in terms of Section 35B(2). 18. In this connection, the appellants are justified in relying upon the decision of the Karnataka High Court in the matter of I.T.C. Limited (supra), wherein it was held that since the appeal was filed by the Member of Committee of Commissioners instead of appeal being filed by any other authorized Officer, the said defect was a curable defect and not fatal. The High Court of Karnataka observed that "If such a mistake were to be there and if an application is filed by the appellant to correct such defect and it is for the Tribunal to consider the same properly and permit the appellant to cure the defect in the appeal memo". In the case in hand the records placed before us it is not the case of anybody that there had been nor the records disclose any manipulation as such in the records nor any effort to fill the gap in the records pertaining to formation of opinion by the competent authority under Section 35B(2) of the said Act. It is a case of mere delay on the ....
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.... appeal by Revenue was not under proper Authority. Even the impugned authorization does not exhibit whether order appealed suffered from legal infirmity or propriety and if so in what manner. The Authorisation not exhibiting the date of meeting for decision, that has not seen light of the day". The Tribunal has further observed that "Right of appeal is not a vested right but a statutory one. Mandate of the statute governs maintainability thereof. If an appeal is made in a casual fashion that should not receive cognizance under law. To be a proper appeal petition, that calls for compliance with law. What that is not an appeal in accordance with law, if admitted, shall seriously injure the order side for no fault of that side. Therefore, considering that admitting an appeal not maintainable would cause grave injury to other side, proper order was passed on 26-4-2007. When the order dated 26-4-07 was passed it was in the presence of both sides and taking into account all relevant facts and material evidence on record appreciating that the Committee had not come to a conclusion at all whether the order appealed suffered from legal infirmity or propriety. The reasons given in the order ....