Commissioner of C. Ex. vs I.T.C. Limited

Though the matter is listed for admission, by the consent of both the parties, the appeal is heard for final disposal.

This appeal is by the revenue. The respondent-assesses is a manufacturer of various brands of cigarette falling under Chapter 24 of Central Excise Tariff Act, 1985 for the period from 1-1-1975 to 28-2-1983. The assessment was finalised on 30-8-2002, where under, there was an excess payment to an extent of Rs. 3,76,29,657,73/- by the assesse. On 19-4-2003, the assessee filed a refund application seeking refund of the excess amount paid by him, thereafter, on 17-6-2003, a show cause notice was issued to him by the department calling upon the assessee to show cause as to why the amount should not be credited to the Consumer Welfare Fund established u/s 12C of the Central Excise Act, 1944. On 31-8-2004, the Assistant Commissioner of Central Excise Division, Ban galore, by his Order-in-Original No. 129/04 ordered for sanction of refund of Rs. 3,76,29,658/- and ordered that the same should be credited to the Consumer Welfare Fund. Aggrieved by the order of the Assistant Commissioner, Central Excise, the assessee preferred an appeal before the Commissioner of Central Excise (Appeals) in Appeal No. 138/2004, which appeal was allowed on 18-3-2005. Aggrieved by the said order, the revenue has filed an appeal before the CESTAT, Bangalore, which appeal came to be dismissed on 22-11-2006 on two grounds:

Firstly, that the person who represented the revenue was not competent to file the appeal and it was required to be represented by an authorised Officer u/s 35B(2) of the Central Excise Act. In order to cure the said defect, a Miscellaneous Petition was filed by the revenue requesting the Tribunal to permit it to cure the defect. The Tribunal, after hearing the learned Counsel for the parties, noticed that instead of authorising the concerned Commissioner, the Committee of Commissioners cannot directly file an appeal before the CESTAT in terms of the provision (2) of Section 35B(2) of Central Excise Act. Thereafter, the revenue filed an authorisation granted to it by the collegium on 16-6-2005. The said authorisation has not been accepted on the ground that the previous authorisation has been granted by a different Committee of Commissioners and the collegium was filed by a different Committee. On this technical ground, the application filed by the revenue has been rejected, against which the present appeal is filed.

We have heard the learned Counsel appearing for both the parties.

The only question of law that arises for our consideration is, whether the Tribunal was justified in dismissing the appeal filed by the revenue as not maintainable as the revenue was not represented by properly authorised Officer and whether the authorisation granted on 16-6-2005 by the Commissioner of Central Excise, Bangalore, was proper or not?

After hearing the parties, we have noticed that the Committee of Commissioners for the revenue has filed the appeal instead of appeal being filed through the authorised Officer, as required under the Central Excise Act. But such a defect was a curable defect and was not fatal to the revenue. If such a mistake were to be there and if an application is filed by the appellant to correct such defect, it is for the Tribunal to consider the same properly and permit the appellant to cure the defect in the appeal memo. Therefore, we are of the opinion that the Tribunal committed error by dismissing the appeal of the revenue as not maintainable. In so far as the second point is concerned, there are two authorisations granted by the Committee. The first authorisation was produced by the appellant along with the appeal memo filed through the Committee. The second authorisation is filed by the appellant granting permission to the authorised Officer to file the appeal, if there are changes in the committee members, the Tribunal was not justified on the ground that the second authorisation was not granted by the very same officers who had granted authorisation at the first instance. If the members who granted authorisation are changed the present incumbent are bound to give the authorisation, if the orders under the appeal were not legal and proper. The question is whether the authorisation granted by the committee on 16-6-2005 was competent or not. It is not the case of the Tribunal that the Committee, which granted authorisation on 16-6-2005, were not competent to issue such authorisation. Therefore, we are of the opinion that the Tribunal was hyper-technical in dismissing the appeal filed by the revenue.

In view of the above discussion, the order of the Tribunal dated 22-11-2006 is set aside. The matter is remanded to the Tribunal for fresh consideration. The Tribunal is directed to grant liberty to the appellant to cure the defects and then dispose the appeal, in accordance with the law.