Custom, Excise & Service Tax Tribunal
Commissioner Of Central Excise, Noida vs M/S. Super Cassettes Industries Ltd on 11 January, 2013
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Excise Appeal No. 269 of 2006
Date of Hearing : 11/1/2013 Date of decision: 11/1/ 2013
[Arising out of Order-in-Appeal No. 108/CE/Appl/NOIDA/2005 dated 28.10.2005 passed by the Commissioner (Appeals), Central Excise, NOIDA ]
For approval and signature:
Hon'ble Ms. Archana Wadhwa, Member (Judicial)
Hon'ble Mr. Sahab Singh, Member (Technical)
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 : Yes
of the CESTAT (Procedure) Rules, 1982 for
publication in any authoritative report or not?
3. Whether Their Lordships wish to see the fair : Seen
copy of the Order?
4. Whether Order is to be circulated to the : Yes
Departmental authorities?
Commissioner of Central Excise, NOIDA
Applicant
Vs
M/s. Super Cassettes Industries Ltd.
Respondent
Present for the Appellant : Shri R.K. Verma, DR
Present for the Respondent : Shri B.L. Narasimhan, Advocate
CORAM:
Hon'ble Ms. Archana Wadhwa, Member (Judicial)
Hon'ble Mr. Sahab Singh, Member (Technical)
ORDER No.A/FO/55385/2013-Ex(Br)
Per Archana Wadhwa :
Being aggrieved with the order passed by Commissioner (Appeals), Revenue has filed the present appeal.
2. When the appeal came up earlier, on 6.11.12, learned advocate appearing for the respondent raised preliminary objection that the appeal is not maintainable because review authorization has been given by one Commissioner and not by the Committee of Commissioners. In view of the above objection, revenue was directed to produce on record notesheets, leading to passing of authorization by Committee of Commissioners. The said directions were given vide Misc. order dated 1141/12-Ex (Br) dated 6.11.12.
3. Learned advocate for the respondent drew our attention to the note sheet placed on record by the revenue, in terms of above Misc. order. He submits that inasmuch as the committee of Commissioners has signed the review order without independently applying his mind to the facts of the case and the legal issues involved and without independently arriving at the conclusion that the impugned order is not a correct order, the appeal cannot be held to be maintainable. For the above proposition, he relied upon the Honble Delhi High Court decision in the case of Commissioner of Central Excise, Delhi vs. Kundalia Industries [2012 (279) ELT 351 (Del)] and CCE, Delhi III Ltd. [2010 (249) ELT 24 vs. B E Automation Products Pvt. Ltd. (P& H). The said two decisions are followed by the Tribunal in the case of Commissioner of Central Excise Noida vs. V S Exim Pvt. Ltd. [2012 (283) ELT 206 (Tri-Del)].
4. After hearing the learned DR and after examining the note sheets placed on record, we find that the impugned order was examined by the Inspector and Superintendent on 21.12.05 and it was noted as under:
In view of the facts above, it appears that O-I-A passed by the Commissioner (Appeals) Central Excise, NOIDA does not appear proper and legal. If approved, an appeal against the said order may be filed in CESTAT, New Delhi. Thereafter the file was placed before the Joint Commissioner, who recorded as under:-
In view of A B C and D marked at pre page, we may prefer appeal against the O-I-A referred on pre page. For perusal and orders please.
Sd/-
21.10.12 Thereafter the file was placed before the concerned officer who wrote the following note:
Kindly refer to the notes proceedings, order-in-appeal 108/CE/APPL/NOIDA/05 dated 28.10.05 is put up to the Committee of Commissioner for preferring filing the appeal before CESTAT. Thereafter file stand simply signed by two Commissioners on two different dates.
5. The Honble Delhi High Court in the case of Commissioner of Central Excise vs. Kundalia Industries has held in terms of provisions of Section 35 B(2) of Central Excise Act, the Committee of Commerce has to form the opinion before filing the appeal, that the order of Commissioner (Appeals) is not legal or proper. As the noting from the relevant files reveal that after receipt of the order passed by Commissioner (Appeals), the matter was examined in the department at the level of Superintendent (Rev) and Asstt. Commissioner (Rev) who made notes giving reasons as to why the appeal should be filed. The Committee of Commissioners simply appended their signatures on the aforesaid notes, which fact 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 35(B). As such, the Honble Delhi High Court by observing that there should be a meaningful consideration which should be reflected on the noting, revealing the decision or opinion of the Committee of Commissioners, mere appending of signatures will not serve the purpose. Accordingly, the appeal filed by the Revenue was held to be not legal and proper.
6. To the same effect is decision of Honble Punjab & Haryana High Court in the case of CCE Delhi III vs. B E Automation Products Pvt. Ltd. cited supra.
3.?In order to satisfy ourselves we have sent for the original record which has been produced before us. All that the file reveals is that a note was put up by the Assistant Commissioner suggesting that the order of Commissioner (Appeals) may please be appealed against. Thereafter the note observed that the file may be marked to the Commissioner Rohtak for decision by the Committee. There is no decision of the Committee on record except the signature of the Commissioner Delhi-III obtained on 19-12-2005 and the signatures of Commissioner Rohtak obtained on 27-12-2005. Both the Commissioners have not even said that they agree with opinion of the Asstt. Commissioner rendered in the Note at X and Y. The only ground in support of the appeal taken in the grounds of appeal is that the opinion of the Committee of Commissioner of Customs was available on the file notings and the appeal was filed under the signatures of the Commissioner who was a Member of the Committee. It has been suggested that the aforesaid fact was not placed before the Tribunal and the only defect was that no formal authorisation order was made.
4.?A perusal of the record shows that firstly there is no opinion expressed by the Committee of Commissioner of Customs; secondly the Tribunal does not seem to be oblivious of the aforesaid fact. The observations made by the Tribunal are clear that in the absence of order of authorisation no appeal was competent. According to sub section 2 of Section 129A of the Act a Committee of Commissioner of Customs may file an appeal against the order of the Commissioner (Appeals) if it is of the opinion that such an order is not legal or proper. In our view there is no evaluation/examination by the Committee of Commissioner Customs in respect of the order passed by the Commissioner (Appeals) leading to the formation of opinion by them to file an appeal before the Tribunal. Therefore, we find that the appeal has not been instituted as per the provisions of sub-section of Section 129A of the Act. The above two decisions were taken note of by the Tribunal in the case of CCE Noida vs. V S Exim Pvt. Ltd. [2012 (283) ELT 206 (T)] and it was observed as under:
8.?In the instant case, from the perusal of the file notings it is apparent that the Committee of Commissioners did not sit together to apply their mind to the facts of the case. The matter has been dealt with by them like any other bureaucratic file without going through the record. Appending of signatures on the note forwarded by the subordinate officers in our view is not sufficient compliance of the mandate of Section 35B(2) of the Central Excise Act, therefore, we conclude that instant appeals have been filed in violation of mandate of Section 35B(2) of the Central Excise Act, 1944, as such, the appeals are not maintainable. In our aforesaid view, we find support from the judgment of Honble Delhi High Court in the matter of CCE, Delhi-I v. Kundalia Industries reported in 2012 (279) E.L.T. 351 (Del.) and the judgment of Honble Punjab & Haryana High Court in the matter of CCE, Delhi-III v. B.E. Office Automation Products Pvt. Ltd. reported in 2010 (249) E.L.T. 24 (P & H).
7. As we have already held that the notes were prepared by the Inspector and Superintendent and forwarded to the higher officers which in turn placed the file before the Committee of Commissioners. There is no independent recording of the fact that said Committee of COmmisisoners has gone through the impugned order and has arrived at a conclusion that the same need to be challenged before the Tribunal. As held by the High Court in the above referred matters, mere appending of signatures on the opinion of lower officers, by itself, is not sufficient compliance with the provisions of Section 35B. As such, we, by following the precedent decisions hold that the Revenues appeal is not valid. The same is accordingly, rejected on the above preliminary ground.
(Pronounced in the Court ) Archana Wadhwa (Judicial Member) Sahab Singh (Technical Member) ss ??
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