Customs, Excise and Gold Tribunal - Bangalore
The Commissioner Of Central Excise And ... vs Ajit India (Hyderabad) Pvt. Ltd. And ... on 15 March, 2006
Equivalent citations: 2006(108)ECC302, 2006ECR302(TRI.-BANGALORE)
ORDER S.L. Peeran, Member (T)
1. All these three Revenue appeals raises common question of law and hence, they are taken up together for disposal as per law. The Commissioner (A) in all the identical orders has dismissed the appeals filed by the Assistant Commissioner and the Joint Commissioner respectively on the ground that they are not authorized officers by the adjudicating authority to file the appeals in terms of relevant statutory provisions. The findings recorded being identical, the para 4 - 7 arising in Order-in-Appeal No. 2/04 CE dated 22.9.2004 is reproduced herein below. An identical order has been passed in Order-in-Appeals No. 1 & 2/04 dated 22.9.2004.
04. I have carefully gone through the case records and examined the position. The Review Order No. 6/2001 dated 08.10.2001 in C.No. V/2/410/2000 (Rev) has recorded the grounds for opining that the impugned order is not "legal and proper", while directing and authorizing the Appellant, an authority lower than the adjudicating authority in rank, to file an appeal with this forum. The relevant statutory provision, Section 35E(2) of the Central Excise Act, 1944 is extracted hereunder:
(2) The [Commissioner of Central Excise] may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct such authority to apply to the [Commissioner (Appeals)] for the determination of such points arising out of the decision or order as may be specified by the [Commissioner of Central Excise] in his order.
[emphasis supplied] 05 An interpretation of the phrase, "such authority" in the statute should be totally and not partially consistent with its reference preceding the phrase. In the provision extracted above, the phrase "such authority" is consistent only to the extent of the authority whose decision is being reviewed under that provision, and not any other authority. Judicial interpretation is that the authorization may be made only to the same rank of the officer passing the order appealed against. In Commissioner of C. Ex., Mumbai-I v. Piramal Spg. & Wvg. Mills Ltd, reported in 2002 (149) E.L.T. 1198 (Tri. - Mumbai); Hon'ble Tribunal held:
8. In a number of cases we have considered the importance of such an authorisation. A Commissioner (Appeals) hears appeals against orders passed by the officers sub-ordinate to a Commissioner of Customs or a Commissioner of Central Excise. As the law earlier stood, the executive Commissioner had the power to review any order passed by such a subordinate officer where he was of the impression that such order was neither legal nor proper. The law was specifically amended to afford greater protection to he assessees against the Revenue minded Commissioners whereby the power of review was taken away. Presently where me Commissioner is of the opinion that an order passed a sub-ordinate officer is required to be reviewed, he has to empower and authorise an officer of the same rank as the one who made the doubtful order to file an application to the Commissioner (Appeals) to determine whether the order is (1) correct (2) legal or (3) proper in terms of Section 35EA(2) of the Act. The law required the Commissioner (Appeals) to hear such application made by the adjudicating authority as an appeal before him.
06. In the case of Commissioner of Central Excise, Nagpur v. Bajaj Plastics Limited, , the issue agitated before the Hon. Tribunal by the Department is the sustainability of the dismissal of a Departmental appeal by Commissioner (Appeals) solely on the ground that the Assistant Commissioner filed an appeal against the Additional Commissioner's order on authorization by the Executive Commissioner. Hon. Tribunal held:
3. In the Revenue's Appeal, reliance has been placed on two decisions of CEGAT namely CCE, Bangalore v. falcon Tyres Limited ; Sun Export Corporation v. Collector of Customs ] to claim that the Appeal filed by any other authorized officer is not invalid. The Commissioner (Appeals) has received upon the judgment on the CEGAT in the case of Dhampur Sugar Mills Co. Ltd. v. CCE, Meerut (Tribunal which holds that only the "adjudicating authority" can be directed to file an appeal in terms of Section 35E(2). The contrary decisions of CEGAT cited in support by the Revenue only try to read the other provisions, where any authorized officer can file appeal and by reading harmoniously held that "an authorized officer" can also file appeal. The said proposition being against the express provision of law as analysed by the latter decisions of the Tribunal the latter decisions including the ones cited by the Respondents have to be preferred.
4. Consequently, the Revenue Appeal deserves to be rejected Hence rejected.
07. The cited case laws are squarely applicable to the instant appeal. Respectfully following the decisions taken by Hon. Tribunal, I hold that the instant Appeal has therefore been filed by improper authorization, and cannot be considered.
2. The learned SDR relies on the Tribunal's judgment rendered by Single Member of Mumbai Bench (Shri C. Satapathy) in case of The Commissioner of Central Excise, Nagpur v. Hari Vishnu Packaging . The Single Member has differed from 5 orders of the Tribunal including Supreme Court judgment and has held that any person can be authorized to file an appeal by which no injury could be caused to other party.
3. The learned Counsel submitted that the Single Member has no powers to differ from the judgment rendered by Supreme Court, as it amounts to a clear judicial indiscipline. He also submits that the Apex Court in the case of The Commissioner of Central Excise v. M.M. Rubber Co. has clearly held that authorization has been given only to such officer, who adjudicated the case. He submits that a Single Member cannot differ from the Supreme Court ruling and also the Divisional Bench judgment of the same West Region as rendered in the case of Supreme Industries Ltd. v. CCE, Indore . He submits that in the light of the Supreme Court and Divisional Bench judgments, the order passed by a Single Member Bench (Shri C. Satapathy) cannot be followed.
4. On a careful consideration, we notice that the Apex Court has decided the issue in the case of CCE v. M.M. Rubber Co. (supra) and the issue had also been decided by the Tribunal in the cases of Dhampur Sugar Mills Co. Ltd., v. CCE, Meerut ; Supreme Industries Ltd., v. CCE, Indore ; CCE, Aurangabad v. Flexoplast Abrasives (I) Ltd., reported in 2003 (55) RLT 233 (T-Mumbai), Collector v. Mirah Export (P) Ltd., ; Sun Export Corporation v. Collector . A Single Member of the Tribunal cannot differ from the Apex Court judgment and the judgment of Divisional Bench and sit in judgment over them. If there were any contra judgments, then the Single Member could have referred the matter to a larger bench. We agree with the learned Counsel and Chartered Accountant with regard to the submissions made that the Single Member cannot take a different view from the settled rulings. The orders passed by the Commissioner (A) in the light of the judgments noted in her orders are supported by the judgments cited supra. We respectfully follow the judgments of the Supreme Court and the Divisional Bench of the Tribunal. There is no merit in these appeals and the same are rejected.
(Pronounced in open Court on 15.Mar.2006.