Whether non recording for proposal or giving order to file appeal in the note sheet be grounds for rejection of appeal?

PJ/Case Laws/ 2012-13/1423

Case:- 2012 (28) S.T.R. 332 (Tri. - Del.)

Citation:- COMMISSIONER OF CENTRAL EXCISE, MEERUT Versus AVADH ALLOYS (P) LTD.

Brief facts:-Revenue has come in application for restoration of appeal on the ground that Tribunal should not have dismissed its appeal finding that one Commissioner has not dated the authorisation and the other has dated the same to be 30th April 2008.

Appellant’s Contention:-The Appellant presents the record to argue that the Committee has approved filing of the appeal finding the impugned order to be neither legal nor proper. Copy of the note sheet is also being filed by Revenue showing that there is approval for filing of the appeal.

Reasoning of Judgment:-Hearing on both sides, it was found that the note sheet filed has to be looked into. The note sheet does not reveal any order passed by the Committee other than the proposal for filing appeal before them. When the Committee has not recorded either stating that they have agreed to the proposal or order to file the appeal that clearly shows that the Committee has not applied its mind. Note sheet also exhibits that while one Commissioner signed the note on 23-4-2008, the other signed on 30-4-2008. When the matter stood thus, a copy of the authorisation filed by Revenue for filing the appeal was signed by one Commissioner on 30th April 2008 and the other was not dated by the other Commissioner who claims to be member of the Review Committee. Finding no order of the Committee even on the note sheet of the record produced before the Tribunal, there is no basis for Revenue to argue further. This Bench has occasion to see lapses after lapses made by Revenue to loose its remedy of appeal by the casual approach and also negligence. Hon'ble High Court of Punjab and Haryana had occasion to examine such issue on the review by Committee in the case of C.C.E., Delhi-III v. B. E. Office Automation Products Pvt. Ltd. - 2010 (249) E.L.T. 24 (P & H). Hon'ble Court called for the record of the Revenue to examine the issue of approval for filing the appeal. There was neither evaluation nor examination done by the Committee of Commissioners in respect of the order proposed to be appealed. In absence of such an application of mind, the Hon’ble Court came to the conclusion that there was neither evaluation nor examination done by the Committee leading to formation of opinion to file appeal before Tribunal. Accordingly, it was held that the appeal was not instituted according to the provisions of Section 129-A of the Customs Act, 1962. In the judgment the Hon'ble Court held that when the fundamental element of formation of opinion of filing the appeal is missing then no appeal is deemed to be instituted in the eyes of law. In that para it was also observed by the Hon’ble Court that ordinarily the court does not non suit the Revenue for a procedural lapse but that case was of such a nature that lapses one after the other have been committed for which the appeal of Revenue was dismissed. For convenience, the judgment is reproduced below:-

“This appeal has been preferred under Section 130(1) of Customs Act, 1962 (for brevity 'the Act') claiming that a substantive question of law has emerged from the order dated 2-2-2009 passed by the Tribunal. The basic reason given by the Tribunal in refusing to entertain the appeal is that there was no authorisation of the Committee to seek the remedy of appeal to be filed by the Revenue”.

The view of the Tribunal is discernible from para 2 of its order which reads thus:

“We have gone through the record on hearing from both the sides. We do not find any authorisation of the Committee to seek appeal remedy by the Revenue. We noticed that the law requiring a Committee to authorise an appeal to be filed came into force on 31-3- 2005. It appears that the Revenue has made a very casual approach to cure the defect when there is law declared by Hon'ble High Court of Karnataka in the aforesaid case in the year 2007. Such an attitude of Revenue is not appreciable to allow further time when they know very well the law which permits to cure defect. Therefore, we dismiss the appeal with an impression that Revenue has made very casual approach. Accordingly, both the appeals are dismissed."

In order to satisfy themselves, the Tribunal has sent for the original record which has been produced before them. 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-I obtained and the signatures of Commissioner Rohtak obtained. Both the Commissioner 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. Noticing that there was not properly maintainable appeal filed at the original stage, there cannot be any repair to be done to the lapse of Revenue by this MA (ROM). Accordingly that is rejected.

Decision:- Appeal Rejected.

Comment:-The essence of this case is that sometimes the negligence and carelessness on account of procedural lapses can also serve as an advantage to the assessee and denial of right to appeal to the revenue.

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PJ/Case Laws/ 2012-13/1423

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