Appeal signed by Superintendent not valid - Dismissed - CESTAT LB
THIS interesting case had a long journey on a simple issue.
The Commissioner passed an order on 31.08.1998. The Board reviewed the order and directed the Commissioner to prefer an appeal before the Tribunal. The Commissioner by an authorisation letter dated 19.11.1999, directed the Superintendent (Appeals), Central Excise & Customs, Surat-I to apply to the Tribunal. Consequent on such authorization, the Superintendent preferred the appeal. The Superintendent is the signatory to the memorandum of appeal.
By the order dt. 03.06.2005, a Division Bench of the Tribunal referred the issue for consideration by Larger Bench. The issue was whether the Commissioner (pursuant of an order of the Board directing an appeal to be filed to this Tribunal), could authorize any other officer to present the appeal. The Larger Bench by the decision dt 29.11.2005, answered the reference stating that the Commissioner on direction by CBE&C to file an appeal under Section 35E(1) of the Act read with Section 35E(4) of the Act cannot validly authorize the Superintendent (Appeals) to present an appeal to this Tribunal and that an appeal signed by Superintendent would not be maintainable.
Aggrieved Revenue took the matter in appeal to the High Court, which by judgment already adverted to, ruled that provisions of Section 35E enjoin that the Commissioner should apply to the appellate Tribunal for determination of the points specified by the Board in its order and what is critical is to ascertain who was the applicant viz. signatory to the appeal; and that the issue whether which officer/individual/authority had physically presented the papers of the appeal to the Tribunal, is of no consequence. The High Court concluded the issue by ruling that if any other person, other than the Commissioner, who is directed by the Board, is the applicant (the appellant), application/appeal would not be maintainable.
So, the matter was remanded to the Tribunal to ascertain whether the appeal was signed by the Commissioner or the Superintendent.
Certainly this is not a complex issue of law, but a simple issue of factual determination. The Tribunal found that the appeal was signed by the Superintendent and not the Commissioner and therefore the appeal was dismissed.