Document Fragment View

Matching Fragments

(d) The Chief Commissioners thus abdicated the statutory responsibility, to review an adjudication order for preferring an appeal, to subordinate officers.

6. We have carefully perused the original record relating to the grant of authorisation signed by the Chief Commissioners of Central Excise. The following is chronology of events relevant by the record:

(a) The Chief Commissioner, Delhi Zone addressed a letter dated 25.06.2012 to the adjudicating authority to forward the file pertaining to the adjudication order, expeditiously;
(b) On 27.06.2012 the office of the adjudication authority forwarded the file as directed;
(c) An office note was drawn up by the office of Chief Commissioner of Central Excise, Delhi Zone (DZ) setting out the brief facts of the case; a summary of the adjudication order; an analysis of the same indicating that the adjudication authority erred in dropping proceedings; and proposing that the Committee of Chief Commissioners review the adjudication order, for preferring an appeal;
(d) The draft note was signed by the Superintendent, Sh. Arvind Kumar on 29.06.2012; by the Deputy Commissioner concerned on 11.07.2012; and by the Chief Commissioner (DZ) on 14.07.2012;

- In CCE, Kanpur vs. Ufan Chemicals - 2013 (290) ELT 217 (All.) Revenues appeals were allowed and orders of this Tribunal (dated 23.02.2010 dismissing Revenues appeal and another order dated 31.03.2010 dismissing the recall application) were set aside and the matter remitted to the Tribunal for a decision on merits. By the order dated 23.02.2010 this Tribunal had rejected Revenues appeal on the ground that the decision by the committee of Commissioners was not taken on any particular day; the order was signed by the Commissioners on different dates disclosing absence of ad dem on the same day. Seeking recall of this order Revenue filed an application which was rejected on 31.03.2010. Appeals against both these orders were preferred to the Allahabad High Court. The Allahabad High Court held, following the decision of the Supreme Court in (Collector vs. Berger Paints India Ltd.  1990 (47) ELT 210 (SC), that the object of a provision requiring an authorisation by the committee for filing an appeal is only to avoid filing of frivolous and unnecessary appeals; the method and manner, in which such authorisation is obtained, is not an issue on which the Tribunal could, in the absence of any objection, make an enquiry to arrive at a finding, whether such authorisation was in accordance with law. The High Court held that since there is no statutory prescription requiring that the Commissioners should sit on the same day at the same time and take a decision for filing of an appeal, a decision would not suffer from error, unless it is shown that was obtained without application of mind by the Commissioners, either sitting together or a different times or dates and at different places. On consideration of the authorities referred to above, in particular the decision of the Karnataka High Court in ITC Ltd. followed by this Tribunal in Grand Prints Pvt. Ltd.; and of the Allahabad High Court in Ufan Chemicals and having due regard to the purposes for which a provision is enacted authorisation by requiring committee of Commissioners / Chief Commissioners for preferring an appeal to this Tribunal as analysed by the Supreme Court in Berger Paints India Ltd., and the relevant statutory provisions, we are of the considered view that a joint meeting of the Commissioners or a simultaneous decision by the Commissioners comprising the committee at such joint meeting is not a requirement of Section 86(2) of the Act. If there is due application of mind, independently by the two Commissioners comprising the committee in respect of the relevant material and the integers of the decision making process, even if the concurrence as regards the decision to prefer an appeal is arrived at by circulation of relevant files and the satisfaction of the Commissioners is recorded on different dates and at different places, the decision would not be void, illegal or violative of the provision. The decision of the Delhi High Court in Kundalia Industries does not enunciate a ratio obligating a joint meeting or sitting of the Commissioners comprising the committee. The ratio in Kundalia Industries, in our respectful view is only that the record should disclose due application of mind by the two officers, to the issue and recording of an opinion, reflecting such application of mind.

14. There is however another aspect. The question is whether the two Chief Commissioners applied their mind and have recorded an informed conclusion / decision for preferring an appeal. As already noticed, the Chief Commissioner, Delhi on 14.07.2012 and the Chief Commissioner, Chandigarh on 23.07.2012 merely signed the note put up by the respective subordinate officers setting out a summary of facts; a summary of the adjudication order; an analysis of the circumstances; and recommendation that this is a fit case for preferring an appeal. The respective notes were signed by the respective Chief Commissioners without anything to indicate independent consideration of the relevant issues and of agreement with the administrative analysis at lower levels, as to the appropriateness of preferring an appeal to the Tribunal. In identical circumstances, the Delhi High Court in Kundalia Industries (paragraph 5 and 6) and this Tribunal in V.S. Exim Pvt. Ltd. have held that mere appending of signatures by the Commissioners comprising the committee on note sheets drawn up by subordinate officers is no compliance of the statutory provision. Shri Amresh Jain, ld. DR would exert to point out a distinction between Section 35B(1A)(2) of the Central Excise Act, 1944 and Section 86(2) of the Act. According to the ld. DR under the Central Excise Act, the committee if of the opinion that an adjudication order or an appellate order is not legal and proper may direct preferring of an appeal to the Tribunal. Section 86(2) of the Act enjoins that the committee, if it objects to an adjudication order, may direct an appeal to be preferred to the Tribunal. In view of the difference in the language of the two distinct provision conferring discretion on the committee under the different enactments, even if Chief Commissioners (DZ & CZ) in the present case had merely appended their signatures (on 14.07.2012 and 23.07.2012) the respective office notes, there is sufficient compliance of Section 86(2), is the contention.