Customs, Excise and Gold Tribunal - Mumbai
Cce vs Piramal Spg. And Wvg. Mills Ltd. on 23 November, 2000
Equivalent citations: 2001(95)ECR361(TRI.-MUMBAI)
ORDER J.H. Joglekar, Member (T)
1. These two appeals are filed by the Revenue. We have seen the authorisation made by the Jurisdictional Commissioner in terms of Section 35B(2) of the Central Excise Act, 1944. In this authorisation the Ld. Commissioner has not given a specific opinion in terms of the aforesaid provision that the order of the Commissioner (Appeals) was not 'legal or proper'.
2. In this situation a number of appeals have been dismissed by a number of Benches of the Tribunal. When we asked Smt. Reena Arya Ld. SDR why this appeal should not meet the same fate, she relied upon the Tribunal Judgement in the case of CCE, Bombay v. Nelco Ltd. 2000 (37) RLT 611 (CEGAT). In this judgement in the face of the Supreme Court Judgement in the case of CCE v. Rohit Pulp Paper Mills 1998 (27) RLT 201 (SC) : 1998 (78) ECR 257 (SC) the Tribunal in identical circumstances has held such defective authorisation as empowering the filing of an appeal.
3. We have seen the cited Judgement. We have also seen the cited Supreme Court order upholding the following finding of the Tribunal:
In the facts and circumstances of the case and after going through the relevant authorisation and note sheet order, we are of the view that the Collector simply authorised the Superintendent to file an appeal without applying her mind. She should have indicated whether order passed by the authorities below is legal or otherwise. In the absence of such averment as envisaged in Section 35B(2) of CESA and since the authorisation is neither legal nor proper, the appeal is dismissed as not maintainable. Ordered accordingly.
4. It is note worthy that this finding has been upheld by the Supreme Court. In arriving at this finding, the Tribunal had not asked for any proof as to the application of mind by the Jurisdictional Commissioner. The Supreme Court in the next paragraph had observed that perhaps the Revenue could have placed the fact of application of mind before the Hon'ble Court but that this was not done. This does not mean nor can it be argued that where such evidence is produced, the authorisation which is ipso facto bad in law would achieve legal sanctity.
5. Where the law specifies a certain format and certain phrases which are mandatory to be included and where they are not included the claim in justification cannot be made that on perusal of the language the intent should be inferred.
6. In dealing with the cases of limitation under Section 11A of the Central Excise Act, 1944 the Supreme Court has made this abundantly clear. It has been held that in the absence of the wording used in the proviso to the said section in the body of the show cause notice the extended period for making of the demand could not be invoked. CCE v. HMM Ltd. . In a particular argument it was suggested to the Hon'ble Supreme Court that the language of the show cause notice indicated the existence of suppression etc. The court did not find favour with that argument. [Collector v. HMM Ltd. CCE, Nagpur v. V.P. Lamination ].
7. Even in the cited case of Rohit Pulp Paper Mills, the Supreme Court has termed the phrases "legal and proper" to appear in the authorisation as a prerequisite without the existence of which the order becomes a nullity.
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 subordinate 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 the assessees against the Revenue minded Commissioners whereby the power of review was taken away. Presently where the Commissioner is of the opinion that an order passed (by) a subordinate 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 (i) 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.
9. We have referred to these developments to show that the office of the Commissioner (Appeals) has been elevated, has been granted autonomy and has been entrusted with the charge of delivering impartial and unbiased justice both to the department and to the assessee. Therefore in utilising the power under Section 35B(2) of the Act, the Jurisdictional Commissioner is required to use utmost discretion and circumspection. He has to peruse the judgement and assess the merits thereof. He thereafter has to decide whether the order is deficient in legality, or in propriety or both. He has thereafter to make a definitive statement of his finding. Then, and then alone he can use the very significant power vested in him by this provision.
10. Where a Commissioner does not even care to put on record the significant phrase which is a prerequisite as prescribed by the Supreme Court, it is difficult to assume that he has applied his mind to the issue before him. In fact it is an extremely simple step once he has made a declaration to that effect. The Tribunal would not call for further proof to examine his application of mind but where the phrase is not used, the Tribunal shall be entitled to presume non application of mind.
11. In dozens of cases the Tribunal have held the view that in the absence of the requisite phrases, the appeal would not survive. The following judgements are merely few examples:
12. (1) Commissioner of Central Excise v. Vipulam Enterprises (P) Ltd. (2) Commissioner of Central Excise v. Touch Wood
13. Similar view has been adopted by this Bench also in a number of cases. Judicial discipline requires a long held view to be adopted by coordinate benches. Where a two-member bench is unable to agree with such a view then it is appropriate that the matter is referred to a Larger Bench. We have therefore respectfully to disagree with the two member bench judgement of the Tribunal cited by the Ld. DR.
14. With these finding we dismiss these two appeals. The Cross-objections also stand disposed of.
(Pronounced in Court).