- (1.) Shri S.P. Kesarwani, learned counsel for the Central Excise Department submits that the substantial question of law on which this Central Excise appeal under Section 35G of the Central Excise Act, 1944 has been filed is covered by the judgment of this Court in Commissioner, Central Excise, Kanpur v. M/s. Ufan Chemicals, Central Excise Appeal Defective No. 158 of 2010 and Commissioner, Central Excise, Kanpur v. M/s. Jagdish Rolling Works, Central Excise Appeal Defective No. 188 of 2010 decided on 5-9-2012 in which the High Court held as follows:- 11. In the present case/the observation of the Tribunal, that the Commissioners did not take the decision on the same day and thus they were not ad idem at the same time to authorise the filing of appeal, apparently goes beyond the object of authorisation under Section 35B(2) of the Act. In order to avoid filing of frivolous appeals and unnecessary appeals, the legislature has provided for an authorisation by the Committee of Commissioners of Central Excise. The method and manner, in which such authorisation is obtained, is not an issue on which the Tribunal could in the absence of any objection make an enquiry to arrive at a finding whether such authorisation was given in accordance with the law. 12. We may also observe here that there are no statutory rules, providing that the Commissioner will sit on the same day at the same time and take a decision authorising a Central Excise Officer to file the appeal. The decision would not suffer from any fatal error unless it is shown that the decision is obtained without application of mind by the Commissioners either sitting together or at different time or dates at different places. 13. We may also observe here that the appeal did not lack merits inasmuch as the question as to whether the penalty under Section 11AC of the Act can be levied when the duty is deposited prior to issuing show cause notice, is covered by the judgment of Supreme Court in CCE v. Rajasthan Spinning Mills, 2009 238 ELT 3. In the order authorising the filing of appeal the Committee of Commissioners, Central Excise have noticed the decision of the Punjab & Haryana High Court to the same effect. 14. For the aforesaid reasons, we find that the order dated 23-2-2010 dismissing the appeal and the order dated 31-3-2010 dismissing the recall application suffer from gross error of jurisdiction by the Tribunal in examining the validity of the authorisation, which it did not possess. 15. Both the appeals are allowed. The orders dated 23-2-2010 and 31-3-2010 passed by the Customs, Excise & Service Tax Appellate Tribunal are set aside. The matter is remanded to the Tribunal for a decision on merits in accordance with the law. This appeal has been preferred on the substantial questions of law as follows:- (I) Whether it was correct and proper for the CESTAT to dismiss revenue appeal on presumption that since the members of the Committee of Commissioners have singed the note put up by subordinate officers for review of the Order-in-Appeal Nos. 20, 21 & 22-CE/APPL/KNP/2009 dated 10-2-2009 in a mechanical manner without any specific findings and signed Review Order on different dates, therefore, such review order also not get sanction in the eye of law? (II) Whether the findings recorded in the impugned final order by the Tribunal, is perverse? (III) Whether the Review Order dated 8-5-2009 (Annexure No. 2) is a valid order/authorization to file appeal under Section 35B(2) of the Central Excise Act, 1944? The appeal is admitted. In this case affidavit of service of Shri Ravindra Kumar, Asstt. Commissioner, Central Excise has been filed stating that on 17-9-2012 notice of this appeal has been served upon the respondent.
(2.) Since no one appears for the respondent, let the matter come up for hearing on 20th November, 2012.;