HIGH COURT OF DELHI
Commissioner of Central Excise, Delhi-I
C.E.A.C. NO. 2 OF 2009
MARCH 29, 2011
1. The Customs, Excise & Service Tax Appellate Tribunal (CESTAT) has dismissed the appeal of the Revenue CCE v. Kundalia Industries 2008 (229) ELT 622 (Trib. – Delhi) which was preferred by the revenue against the orders of the Commissioner (Appeals) whereby the Commissioner (Appeals) had decided the case against the Revenue. The appeal is dismissed on two grounds namely :-
(i) No opinion is formed by the Committee of Commissioners about the illegality of the order as required under Section 35B of the Central Excise Act.
(ii) There was no authorization by the Committee of Commissioners to file appeal on its behalf.
2. Section 35B(2) of the Central Excise Act reads as under :-
“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 authorized by him in this behalf (hereafter in this Chapter referred to as the authorized officer) to appeal on its behalf of the appellate Tribunal against such order.”
3. It is clear from the plain reading of the aforesaid provision that the Committee of Commissioners has to form an opinion before filing the appeal, that the order of Commissioner (Appeals) is not legal or proper and it has to further direct any Central Excise Officer authorized by him in this behalf, to file such an appeal, as noted above, the CESTAT find that neither of the two requirements which are mandatory stood satisfied.
4. The aforesaid order of the CESTAT is under challenge in the present appeal. In order to show that the Commissioner (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. (N.T.)”
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 there was no meeting of the aforesaid two officers to consider the case. The record also does not disclose that these two officers applied their mind to the issue and recorded any opinion, as per the requirement of Section 35B of the Central Excise Act that the order of the Commissioner (A) was not legal or proper and warranted to be challenged by filing an appeal.
6. We are of the view that there should be a meaningful consideration which should be reflected on the note sheets in order to comply with the requirement of Section 35(2) of the Act. In this case, the file does not show any such satisfaction or opinion having been recorded by the Committee of Commissioners. On this ground itself this appeals fails and is accordingly dismissed.