Customs, Excise and Gold Tribunal - Bangalore
The Commissioner Of Central Excise vs Itc Ltd. on 22 November, 2006
Equivalent citations: 2007(210)ELT193(TRI-BANG)
ORDER S.L. Peeran, Member (J)
1. This appeal has been filed by Revenue. A preliminary objection has been raised by the Respondent-assessee that the appeal filed by the Committee of Commissioners in terms of Section 35B(2) without authorizing the concerned Commissioner to file the appeal is not maintainable in law. Both sides have relied on large number of judgments to contest this issue.
2. It is the submission of the learned Counsel that the appeal is not maintainable, as the concerned Committee of Commissioners cannot directly file the appeal before CESTAT in terms of the proviso (2) of Section 35B(2) of Central Excise Act. The Committee of Commissioners is appointed by the Board to authorize the concerned Commissioner to file the appeal on reasons set out by them. In the present case, no such authorization has been given by the Committee of Commissioners with the words "not legal and proper" instead they have directly filed the appeal. He relies on 3-Member judgment of the Tribunal rendered in the case of CCE v. E.I.D. Parry Ltd. 1999 (41) ELT 655 (T) which dismissed the appeal as the concerned officer i.e. Asst. Commissioner who was required to file an appeal in terms of Section 35B(2) was not given the authority to file the appeal but it was filed by Superintendent of Central Excise. He also relied upon judgment of the Single Member Bench rendered in the case of CCE v. Sterlite Industries Ltd. 2006-TIOL-1368-CESTAT-MUM, wherein the Single Member dismissed the appeal on maintainability when the authorization was not given to the concerned officer in terms of Section 35B(2). The Majority Order of West Region Bench rendered in the case of CCE v. Shree Ganesh Dyeing and Printing Works 2006 TIOL 1222 also dealt with the similar issue. It was also held in the cited case that subsequent act to rectify the infirmity of the first act which was not in terms of the law and it cannot be permitted. Therefore, the learned Counsel submits that the Commissioner has now filed a Miscellaneous Application seeking permission to rectify the defect, which also cannot be entertained. He prays for dismissing the Miscellaneous Application listed today on behalf of the Commissioner to rectify the defect. He also points out that the same Committee of Commissioners has not filed the Miscellaneous Application but a new Committee of Commissioners have filed it. It is also not sustainable in law.
3. On the other hand, the learned Consultant for the Commissioner contends that the interest of Revenue should be safeguarded and the Miscellaneous Application permitting authorization and new set of grounds should be allowed. The prayer in the Miscellaneous Application is to rectify the defect inasmuch as that the Miscellaneous application seeks permission from the Tribunal to rectify the defect in the authorization, inasmuch as the Committee of Commissioners have now directed the concerned Additional Commissioner to file the appeal. The Miscellaneous Application also seeks for changing the grounds in the appeal memo and fresh grounds have been brought in, which was not approved or indicated by the earlier Committee of Commissioner. Therefore, the Advocate for the Respondent resists this prayer of Revenue also on the ground that the nature of the appeal has changed with the new Committee of Commissioners filing the Miscellaneous Application seeking fresh grounds and authorizing Additional Commissioner for filing the appeal. However, the learned Consultant relies on the following citations.
(i) ITC Ltd. Madras v. CCE, Madras
(ii) Bajaj Hindustan Ltd. v. CCE, Allahabad 2002 (149) ELT 529 (Tri.-Del.)
(iii) Magna Agro Indus. v. CCE, Allahabad
(iv) Mirc Electronics Ltd. v. CCE, Mumbai 1998 (99) 247 (T)
(v) Sharda Anand v. CC
(vi) ITI Ltd. v. CC
(vii) Wood Craft Products Ltd. v. CCE .
4. The learned Counsel relies on the judgment of the Apex Court rendered in the case of CCE v. Rohit Pulp Paper Mills Ltd. 1989 101 ELT 5 (SC) by which the Apex Court dismissed the appeal for not having been filed in terms of the Section 35B(2), which clearly indicated as to what are the pre-requisite to form an opinion to file an appeal.
5. We have carefully considered the submissions. The Section 35B(2) is reproduced herein below:
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 and proper, direct any Central Excise Officer authorized by him in this behalf (hereafter in this any Chapter referred to as the authorized officer) to appeal (on its behalf) to the Appellate tribunal against such order.
In terms of the above provisions, the Committee of Commissioners of Central Excise in their opinion if the order passed by the Appellate Commissioner (A) under Section 35A is not legal and proper direct any Central Excise Officer authorized by them in their behalf to file the appeal before the Appellate Tribunal against the said order. In the present case, the Committee of Commissioners has directly filed the appeal without expressing their opinion about the impugned order passed by the Commissioner (A), being as "not legal and proper". The Section 35B(2) does not invest with the power to file the appeal directly to the Committee of Commissioners of Central Excise. The law has not permitted them to do so. They have to only express their opinion about the legality and proprietary of the impugned order and direct any Central Excise officer to file an appeal before the appellate Tribunal. There is a clear violation of the law as laid down in the Section. The consultant relied on the above noted judgments and submitted that the error is a procedural error which can be rectified.
5.1 We are of the considered opinion that this error is not a procedural error as found in the citations. Those errors noted in the citations were all curable. It did not pertain to a situation like in the present case. The present error is non-curable and it cannot be rectified by allowing the present Miscellaneous Application. Furthermore, the present Miscellaneous Application seeks fresh and totally new grounds which have not been authorized by the earlier Committee of Commissioners. On this point also Revenue's plea fails. We clearly notice from the judgment of CCE v. Shree Ganesh (supra) wherein the Tribunal clearly held that subsequent act cannot rectify the infirmity of the first act, as both the acts are being performed by two different authorities at different stages. Furthermore, it has held that one cannot venture to cull out the meaning of the words "not legal and proper" from the grounds of appeal, as it is completely outside the scope of Section 35B(2) of Central Excise Act. In these cited cases, the Commissioner instead of authorizing any officer, had himself filed the appeal and such infirmity has been held to be not curable and the appeal has been dismissed. The Judicial Member in the said order in his opinion also held that the Apex Court in the case of CCE v. Rohit Pulp Paper Mills (Supra) clearly held that if the law prescribes a thing to be done in a particular manner, it has to be done in that manner alone and it cannot be done in any other manner. This opinion of the West Region Bench rendered in the case of CCE v. Shree Ganesh (supra) clearly applies to the facts of the case. The judgments cited by the learned Consultant pertain to defects in the appeal which could be rectified but the present defect is incurable. Therefore, the preliminary objection raised by the learned advocate regarding the maintainability of the appeal is upheld. The appeal is dismissed as not maintainable. The Miscellaneous Application filed by the new Committee of Commissioners authorizing the Additional Commissioner to raise new grounds other than what was raised in the appeal cannot be entertained and the same is also rejected. The Miscellaneous Applications and Appeal is dismissed.
(Pronounced in open Court on 22.11.2006)