- (1.) WE have heard Sri Ashok Singh for the appellant. Sri Nishant Mishra and Sri Aditya Bhattacharya appear for respondent -assessee. On 25 -10 -2013, we passed following order: - "Shri Nishant Mishra has accepted notice on behalf of respondent -assessee. There is no serious objection to the delay of one day in filing the appeal. The cause shown for condonation of delay is good and sufficient. The application for condonation of delay is allowed. The appeal will be given regular number. It is submitted by Shri Nishant Mishra that prima facie the matter is not covered by the judgment of this Court in Central Excise Appeal Defective No. 158 of 2010 (Commissioner, Central Excise, Kanpur v. M/s. Ufan Chemicals) decided on 5 -9 -2012 inasmuch as in the present case the Tribunal has recorded the finding that the note, regarding information/suggestion to file an appeal prepared by the officer below to the rank of Commissioner, was placed before the Committee of Commissioners, who simply sent the same without recording any independent opinion. Shri Ashok Singh, appearing for the revenue submits that the orders passed by the Committee of Commissioners cannot be questioned as the note was placed before them, contained the orders as well as the ground on which the order was to be challenged. In any case the appeal could not be dismissed and could only be sent back to the Committee of Commissioners for recording opinion under Section 35B(2) of the Central Excise Act. Let Shri Ashok Singh produce the record of the approval given by the Committee of Commissioners under Section 35B(2) of the Act. List on 14 -11 -2013."
(2.) SRI Ashok Singh has produced the records, to establish that the Committee of Commissioners had applied their minds to the facts of the case, and the grounds on which the appeal was to be filed, for giving approval under Section 35B(2) of the Central Excise Act, to file the appeal. We have perused the records. On the order sheet of the file, we find that there was a note prepared by the office on 15 -7 -2006, which follows the reasons on which the Joint Commissioner (R) proposed to the Committee of Commissioners, to file the appeal giving reasons, which were prepared by the office on 18 -7 -2005. Just below the reasons, we find an order of JC (R), which has been signed by the Commissioner (Ghaziabad) and Commissioner (Noida). The order reads as follows: - "In the OIA, it is seen that the Com (A) has now given his findings on the observations of ADC on the O.I.O. We may therefore if approved file appeal against O.I.A. For order pl. .... Sd/ -19/7 Comm (Ghaziabad)... Sd/ - 19 -7 -2005 Comm (Noida)... Sd/ - Date "20 -7 -2005" connected vide Misc. Correction Application No. 343840 of 2013, dated 26 -11 -2013 [19 -7 -2005]"
(3.) THE order sheet of the record establishes that on the note put up by the office, the Joint Commissioner (R) prepared a draft order, giving the reasons for filing the appeal, which was signed by the Commissioner (Ghaziabad) and Commissioner (Noida), as the Committee of Commissioners.;