Allahabad High Court
Commissioner Of Central Excise vs M/S Premier Ispat Ltd. on 1 September, 2017
Bench: Pankaj Mithal, Umesh Chandra Tripathi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 3
Case :- CENTRAL EXCISE APPEAL No. - 191 of 2013
Appellant :- Commissioner Of Central Excise
Respondent :- M/S Premier Ispat Ltd.
Counsel for Appellant :- Krishna Agarwal,Praveen Kumar
Hon'ble Pankaj Mithal,J.
Hon'ble Umesh Chandra Tripathi,J.
The appellant has filed affidavit of service dated 01.03.2013 stating that a set of appeal has been served upon the respondent on 01.03.2013 enclosing the acknowledgement of receipt.
In view of the said affidavit of service no further affidavit of service is required and the office report in this regard is incorrect.
After the appeal was admitted, notice was also issued to the respondent by the Registered Post A.D. but the office report shows that the notice so sent to the respondent has not been returned undelivered nor acknowledgement has been received yet.
In view of the above, service of notice upon the respondent is deemed to be sufficient but no one has put in appearance on behalf of respondent.
Accordingly, the appeal has to proceed ex parte against it.
Heard Shri Praveen Kumar learned counsel for Central Excise.
The Excise department has challenged the order dated 31.07.2012 passed by the Judicial Member Custom, Excise and Service Tax Appellate Tribunal [CESTAT].
The CESTAT by the said order dismissed the appeal of the department as one of the members of the committee of Commissioner has not put the date below the signatures and the authorization for the filing of the appeal was defective.
One of the substantial questions of law formulated in this appeal earlier is as under:-
"(i) Whether under the facts and circumstances of the case the Tribunal was justified to reject the appeal on the ground that the authorization for filing appeal suffers from the legal infirmity of not being dated by one member of the Committee of Commissioners?"
In Central Excise Appeal Defective No. 158 of 2010 Commissioner of Central Excise Vs. M/s. Ufan Chemicals and connected appeal decided by the Division Bench of this Court vide judgement and order dated 05.09.2012, it has been held that the purpose of obtaining authorization from the committee of Commissioners of Central Excise for filing appeal is to avoid filing of frivolous and unnecessary appeals. There are no statutory rules providing that the Commissioners will sit on the same date at the same time and take a decision authorizing filing of the appeal. The decision would not suffer from any fatal error unless it is shown that it has been taken without application of mind by the Commissioners either sitting together or a different times or a different places.
In the present case, only ground on which the appeal has been rejected is that the authorization does not bears the date below the signatures of one of the members.
The authorization is on record and it is dated 28.06.2010 as is evident from the date mentioned below the signatures of one of the members of the committee. It also bears the signatures of the other member of the committee. Therefore the said authorization would be deemed to be authorization dated 28.06.2010 unless contrary is proved.
It is not the case of any party that the authorization has not been signed by the said members or that the other member who had not mentioned the date below his/her signatures was not available on 28.06.2010 or that she has not applied her mind before signing it.
In view of the above, the non mentioning of the date below the signatures of one of the members of the committee is not in violation of any statutory rule rather a mere irregularity of a clerical nature which is not fatal to the authorization.
Accordingly, the question of law as to whether the appeal could have been dismissed on the ground of defective authorization is answered in favour of the Revenue and against the assessee holding that mere none mentioning of the date below the signatures of one of the members of the authorizing committee would not amount to any legal infirmity and the authorization would be a valid authorization so long as it is duly signed by the members.
The appeal is allowed.
Order Date :- 1.9.2017
Sharad/-
