Maintainability of Revenue appeal when no ad idem on particular day by Commissioners passing Review order

PJ/Case Laws/2011-12/1515

Case: COMMISSIONER OF C. EX., JAIPUR-II v/s SHREE RAJASTHAN SYNTHETICS LTD.

Citation: 2012 (25) S.T.R. 166 (Tri.-Del.)

Issue:- Whether review order is maintainable when there is no ad idem on a particular day by both the Commissioners for a unanimous decision?

Brief Facts:- Preliminarily the appeal suffers from maintainability in view of no decision on a particular day by two Commissioners who were expected to form a Committee. While one Commissioner signed the Review Order on 16-9-2010 the other Commissioner agrees to his decision on 28-9-2010. There is no ad idem on a particular day by both the Commissioners for a unanimous decision. The decision was issued vide order No. 05/Review/2010, dated 30-9-2010. Law expects that there should be a Committee and the Committee should comprise of two Commissioners and such Committee to have an agreeable decision of the members of the Committee on the day they form the Committee and the moment they take decision. While one member cannot form a Committee the other cannot be made to sign a decision of one member on subsequent day. Revenue is becoming non-suitor for casual approach to the law which has been observed by Hon'ble High Court of Punjab & Haryana in the case of CCE, Delhi-III v. B.E. Office Automation Products Pvt. Ltd. reported in 2010 (249) E.L.T. 24 (P & H). Similarly when the pre-requisite of law was not fulfilled Hon'ble High Court of Gujarat in the case of CCE & C, Surat-I v. Shree Ganesh Dyeing & Printing Works reported in 2008 (232) E.L.T. 775 (Guj.) has also ruled that the appeal of Revenue does not become maintainable where reason for appeal of Revenue is not stated indicating the order appealed is neither legal nor proper.

Appellant’s Contention:- The appellant relies on the decision of the Tribunal in the case of CCE, Delhi v. Grand Prints Pvt. Ltd., reported in 2009 (240) E.L.T. 631 (Tri.-Del.). She submits that the Committee can take decision by circulation. Such a plea is untenable when there is no express provision in law for decision by circulation. In case of circulation of decision, legislature would have expressed their intention to sanction the same.

Reasoning of Judgment:- The Tribunal held that the expectation from the Committee is regarding deliberation made and conclusion drawn. When two minds do not meet together on a particular day, no Committee is said to have been existing at a particular moment. Therefore, the Review Order is non est in the eyes of law. Accordingly, Revenue's appeal is dismissed as non-maintainable.

Decision:- Appeal dismissed.

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PJ/Case Laws/2011-12/1515

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