J.H. Joglekar, Member (T)
1. These four appeals were filed by the Commissioner of Central Excise, Surat-I against the common order of the Commissioner (Appeals). Application was also made for stay of operation of the order. When the stay application was heard, the bench recorded a note as follows:
In these four appeals the Revenue had challenged the single order of the Commissioner (Appeals). We find that the other Commissioner had followed the ratio of the earlier orders passed by him. His order makes it clear that the copy of the earlier orders was made a part of the impugned order. Since the Appellant Commissioner has not filed copies of those earlier orders, we are unable to proceed with the hearing of the applications for stay. Registry would issued a notice to the applicant Commissioner under Rule 11 of the CEGAT (Procedure) Rules, making it clear that if the lacuna is not made good within two weeks of the receipt of the notice, the appeals shall be liable to be dismissed without further Notice.
2. Copy of the record note be given to both sides.
2. These directions were despatched to the Commissioner on 29.8.2000 along with the notice that the matter will be taken up today. There is no compliance on record. Shri Patwari, JDR, is not in receipt of any communication from the Commissioner.
3. Shri R.D. Wagley appearing for M/s. Ravi Exports Ltd., one of the respondents, submits that some more appeals were also filed against the said order of the Commissioner (Appeals). One of those was decided by the Tribunal in the order . In that order the Tribunal has dismissed the appeal on the observation that the Commissioner had authorised filing of the appeal under Section 35E(2) where the correct authority was under Section 35B. The Tribunal had dismissed the appeal in the following words:
3. I have considered the rival submission. Normally, whenever an authority passed an order wrong mentioning of rule should not deny the authority to exercise the power enshrined under the Act. Here the judgment of the Supreme Court in Rohit Pulp Paper Mills may proceed on the basis that the provisions of Section 35B should be treated as a mandatory way. The authorisation extracted above shows that Section 35E(2) deals with an appeal before the Commissioner (Appeals). The power of the Commissioner is to authorise officers subordinate to him to file appeal before the Commissioner (Appeals) against an order passed by the adjudicating authority. The provisions of Section 35B(2) enables the Commissioner to file appeal against an order passed by the Commissioner (Appeals) to the Tribunal. The word CEGAT, Mumbai is mentioned in the authorisation. It is true that a possible view could be taken that the Commissioner, Surat may have though of filing appeal to CEGAT, Mumbai but the existence of the words “provisions of Sub-section (2) of Section 35F” enable me not to accept the contention raised by the department because the judgment of the Supreme Court in Rohit Pulp Paper Mills may hold that it is a mandatory provision. Where there is a mandatory provision the Commissioner has to be careful in exercising the power enshrined under Section 35B. It may be noted that the Commissioner (Appeals) and the Commissioner (Adjudication) are equivalent in rank. The functions of the Commissioner, in exercising the power under Section 35B(2) and 35E(2) are different. The Executive Commissioner has to view the order passed by the Commissioner (Appeals) who is equivalent in rank, in a proper way. He has to give some weight to the order passed by the authority equivalent to him. Whenever any action is taken against the equivalent authority’s order the Executive authority has to be careful in looking into the works contained in the authorisation. He cannot authorise a subordinate officer to plead on his behalf in a lackadaisical and casual manner. This may show some sort of non-application of mind inasmuch as the appeal provisions contained in Section 35B and 35E are different, namely one is filing of appeal before the Commissioner (Appeals) and the other is filing of appeal before the Tribunal. I am therefore constrained to hold, in view of the circumstances of this case as well as the decision of the Supreme Court in Rohit Pulp Paper Mills that the provision of Section 35B(2) is a mandatory one. Hence I dismiss the stay petition as well as the appeal. The appeal is not disposed of on merits.
4. One more point needs to be commented. The appeal before the Tribunal against the order pleaded on behalf of the department by the Commissioner is that an appeal is filed by the Commissioner before a superior authority. He cannot allow his Commissionerate to send attested copy of the authorisation. It is salutary if the Commissioner sends the original of the authorisation and instruct his Commissionerate accordingly. As I feel that it is an important matter, I am directing the Registry to send a copy of this order to the Chairman, CBEC to issue suitable instructions in this regard.
4. In the present case also we find that the appeals suffer from this additional defect that is the authorisation being made under Section 35E(2) and the authorisation being attested photocopies.
5. The appeals merit dismissal and are dismissed.