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Judgment
We have heard Sri Ashok Singh for the appellant. Sri Nishant Mishra and Sri Aditya Bhattacharya appear for respondent-assessee. On 25-10-2013, we passed following order:-
"Shri Nishant Mishra has accepted notice on behalf of respondent-assessee.
There is no serious objection to the delay of one day in filing the appeal. The cause shown for condonation of delay is good and sufficient. The application for condonation of delay is allowed. The appeal will be given regular number.
It is submitted by Shri Nishant Mishra that prima facie the matter is not covered by the judgment of this Court in Central Excise Appeal Defective No. 158 of 2010 (Commissioner, Central Excise, Kanpur v. M/s. Ufan Chemicals) decided on 5-9-2012 inasmuch as in the present case the Tribunal has recorded the finding that the note, regarding information/suggestion to file an appeal prepared by the officer below to the rank of Commissioner, was placed before the Committee of Commissioners, who simply sent the same without recording any independent opinion.
Shri Ashok Singh, appearing for the revenue submits that the orders passed by the Committee of Commissioners cannot be questioned as the note was placed before them, contained the orders as well as the ground on which the order was to be challenged. In any case the appeal could not be dismissed and could only be sent back to the Committee of Commissioners for recording opinion u/s 35B(2) of the Central Excise Act.
Let Shri Ashok Singh produce the record of the approval given by the Committee of Commissioners u/s 35B(2) of the Act.
List on 14-11-2013."
Sri Ashok Singh has produced the records, to establish that the Committee of Commissioners had applied their minds to the facts of the case, and the grounds on which the appeal was to be filed, for giving approval u/s 35B(2) of the Central Excise Act, to file the appeal.
We have perused the records. On the order sheet of the file, we find that there was a note prepared by the office on 15-7-2006, which follows the reasons on which the Joint Commissioner (R) proposed to the Committee of Commissioners, to file the appeal giving reasons, which were prepared by the office on 18-7-2005. Just below the reasons, we find an order of JC (R), which has been signed by the Commissioner (Ghaziabad) and Commissioner (Noida). The order reads as follows:-
"In the OIA, it is seen that the Com (A) has now given his findings on the observations of ADC on the O.I.O. We may therefore if approved file appeal against O.I.A. For order pl.
.... Sd/-19/7
Comm (Ghaziabad)... Sd/- 19-7-2005
Comm (Noida)... Sd/- Date "20-7-2005" connected vide Misc. Correction Application No. 343840 of 2013, dated 26-11-2013 [19-7-2005]"
The order sheet of the record establishes that on the note put up by the office, the Joint Commissioner (R) prepared a draft order, giving the reasons for filing the appeal, which was signed by the Commissioner (Ghaziabad) and Commissioner (Noida), as the Committee of Commissioners.
On the aforesaid noting and signatures of the Commissioners, Central Excise, Department - Ghaziabad & Noida, appended under the proposed order, we have no doubt that the Commissioner (Ghaziabad) and Commissioner (Noida) had applied their mind in forming an opinion to file the appeal.
Sri Nishant Mishra, learned counsel for respondent-assessee submits that there is nothing to show that the Committee of Commissioners had applied their independent mind to the noting, on which reasoning was prepared and thereafter recommendation was made by the Joint Commissioner, which was signed by the Committee of Commissioners. In such a case, there can be no inference of application of mind by the Committee of Commissioners of Central Excise. They have not written anything before putting their signatures, which shows that they have simply looked the noting and the reasoning given by the Joint Commissioner before signing on the order sheet. He relies upon judgments in Collector of Central Excise, Calcutta Vs. Berger Paints India Ltd., and Collector of Central Excise, Vadodra Vs. Rohit Pulp Paper Mills,
In Commissioner, Customs, Central Excise and Service Tax Vs. Devson Steels, [Central Excise Appeal No. 282 of 2013], we examined a similar question, and recorded our findings after considering the judgments in Collector v. Berger Paints India Ltd. (supra) and Collector v. Rohit Pulp Paper Mills (supra) and other decisions on the point, and observed as follows:-
"8. The object and purpose of enacting Section 35B(2) is to avoid filing of frivolous and unnecessary appeals. The legislature has provided the mechanism for authorisation of Committee of Commissioners to apply their mind and form an opinion as to whether the interest of the Revenue will suffer in case the appeal is not filed. The provision also serves the purpose to avoid filing of the appeals in routine manner against every order u/s 35B of the Act. If the Committee of Commissioners of Central Excise is of the opinion that the order passed by the Appellate Authority (Commissioner, Central Excise) u/s 35 or the Commissioner (Appeals) u/s 35A is not legal and proper, it may direct Central Excise Officers authorised by him in his behalf to Appellate Authority against the order.
In our view the opinion of the Board of Commissioner of the Central Excise u/s 35B is not justiceable on merits in Court. The opinion to be formed by the Board of Commissioners is a prima facie opinion and is not conclusive in nature which may be subject to challenge by the assessee on merits. If such an order is subjected to judicial review, it may give rise to taking ground to be agitated in almost every case and will cause unnecessary delay in disposal of the appeals u/s 35B of the Act."
As observed by us, the object and purpose of enacting Section 35B(2) of the Act is to avoid filing of frivolous and unnecessarily appeals, and to safeguard the interest of the Revenue.
The record produced before us clearly demonstrates that the Committee of Commissioners have signed on the note, which contains the reasons, and the proposed order giving grounds on which the appeal has to be filed. We are satisfied that the Committee of Commissioners have applied their mind before authorizing to file the appeal.
On the aforesaid reasoning, we do not propose to grant time to respondent to file a counter affidavit, especially when we perused the original records.
The Central Excise Appeal is allowed. The order dated Date "16-5-2005" corrected vide Civil Misc. Correction Application No. 343810 of 2013, dated 26-11-2013 [26-2-2013] passed by the Customs, Excise and Service Tax Appellate Tribunal, New Delhi, Principal Bench, Court No.-II in E/Appeal No. 2662 of 2013 is set aside, and the matter is sent back to the Tribunal, to decide the appeal on merits.