Original authorization granted by wrong Committee - substitution of authorization allowed as it is curable defect: CESTAT
IN the case of Commissioner of Customs (Import), Mumbai vs. Gudel India Pvt. Ltd. the issue was whether an appeal filed on the strength of Review order passed by a "wrong" Committee of Commissioners could be considered proper and legal. The CESTAT had thrown out the Revenue appeal as non-maintainable (2011-TIOL-101-CESTAT-MUM).
Under the impression that the CESTAT wanted the Revenue to file a fresh appeal based on an order passed by the "correct" Committee, another appeal was prepared & filed pursuant to issue of an order by the "correct" Committee. However, since there was a delay of 697 days, an application for condoning the delay was also filed as is "statutorily" required. The Bench threw all of them into the nearest waste paper basket. See 2012-TIOL-810-CESTAT-MUM.
But there is another story to tell. In the case of CCE, Raigad vs. Preeti Logistics () the Bench held that such an error is rectifiable since technical in nature.
Recently, a similar issue came before a Single Member Bench who was one of the Members who constituted the Division Bench in the preceding two citations mentioned.
In the present case, a miscellaneous application was filed by the revenue for substitution of authorization issued by the authorities in Appeal no. ST/233/11.
An authorization for filing the appeal was granted by the Committee consisting of Commissioner of Central Excise, Raigad and Commissioner of Central Excise, Belapur. However, as the matter pertained to the Service Tax, the appropriate Committee for grant of authorization is the Commissioner of Service Tax II, Mumbai and Commissioner of Central Excise, Raigad.
Therefore, the Revenue filed a revised authorization and prayed that the revised authorization be taken in place of the original authorization.
The Bench observed -
“...Inasmuch as the defect in the original appeal is a curable defect, I allow the miscellaneous application filed by the Revenue for substitution of authorization by the competent authority in the place of the original authorization filed with the appeal.”
The miscellaneous application was thus allowed. Interestingly, this time too, the respondent was not represented.