CUSAP Nos. 19 and 20 of 2009 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CUSAP No. 19 of 2009 Date of decision 14.12.2009 Commissioner of Central Excise Delhi III, Gurgaon ... Appellant Versus M/s B.E. Office Automation Products Pvt. Ltd. ... Respondent CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. Kamal Sehgal, Senior Standing Counsel (Indirect Taxes) for the appellant. 1.To be referred to the Reporter or not ? 2.Whether the judgement should be reported in the Digest ? M.M.KUMAR, J. This order shall dispose of CUSAP Nos. 19 and 20 of 2009 as both the appeals are directed against a common order dated 2.2.2009 (A.3) passed by the Customs Excise and Service Tax Appellate Tribunal, New Delhi (for brevity 'the Tribunal'). For the purpose of this order, facts are being taken from CUSAP No. 19 of 2009. This appeal has been preferred under Section 130(1) of Customs Act, 1962 (for brevity 'the Act') claiming that a substantive question of law has emerged from the order dated 2.2.2009 passed by the Tribunal. The basic reason given by the Tribunal in refusing to entertain the appeal is that there was no authorisation of the Committee to seek the remedy of appeal to be filed by the Revenue. The view of the Tribunal is discernible from para 2 of its order which reads thus: “ We have gone through the record on hearing from both the sides. We do not find any authorisation of the Committee to CUSAP Nos. 19 and 20 of 2009 2 seek appeal remedy by the Revenue. We noticed that the law requiring a Committee to authorise an appeal to be filed came into force on 31.3.2005. It appears that the Revenue has made a very casual approach to cure the defect when there is law declared by Hon'ble High Court of Karnataka in the aforesaid case in the year 2007. Such an attitude of Revenue is not appreciable to allow further time when they know very well the law which permits to cure defect. Therefore, we dismiss the appeal with an impression that Revenue has made very casual approach. Accordingly, both the appeals are dismissed.” In order to satisfy ourselves we have sent for the original record which has been produced before us. All that the file reveals is that a note was put up by the Assistant Commissioner suggesting that the order of Commissioner ( Appeals) may please be appealed against. Thereafter the note observed that the file may be marked to the Commissioner Rohtak for decision by the Committee. There is no decision of the Committee on record except the signature of the Commissioner Delhi III obtained on 19.12.2005 and the signatures of Commissioner Rohtak obtained on 27.12.2005. Both the Commissioners have not even said that they agree with opinion of the Asstt. Commissioner rendered in the Note at “X” and “Y”. The only ground in support of the appeal taken in the grounds of appeal is that the opinion of the Committee of Commissioner of Customs was available on the file notings and the appeal was filed under the signatures of the Commissioner who was a Member of the Committee. It has been suggested that the aforesaid fact was not placed before the Tribunal and the only defect was that no formal authorisation order was made. CUSAP Nos. 19 and 20 of 2009 3 A perusal of the record shows that firstly there is no opinion expressed by the Committee of Commissioner of Customs; secondly the Tribunal does not seem to be oblivious of the aforesaid fact. The observations made by the Tribunal are clear that in the absence of order of autorisation no appeal was competent. According to sub section 2 of Section 129 A of the Act a Committee of Commissioner of Customs may file an appeal against the order of the Commissioner (Appeals) if it is of the opinion that such an order is not legal or proper. In our view there is no evaluation/ examination by the Committee of Commissioner Customs in respect of the order passed by the Commissioner (Appeals) leading to the formation of opinion by them to file an appeal before the Tribunal. Therefore, we find that the appeal has not been instituted as per the provisions of sub section of Section 129 A of the Act. The Revenue has also pleaded that after the dismissal of the appeal vide order dated 2.2.2009 an order of authorisation has been passed subsequently on 4/6/2.2.009 which may be considered as ex post facto authorisation. Firstly, there is no ground raised in the grounds of appeal which has been filed on 6.7.2009. Moreover, after the dismissal of appeal by the Tribunal the defect could not have been removed. A perusal of the file shows that the Revenue has proceeded on the premises that on 2.2.2009 it has been given time to cure the defect by 9.2.2009 as the next date fixed is 18.2.2009 . The aforesaid premise is factually incorrect as the appeals were dismissed vide order dated 2.2.2009 (A.4). In any case once the fundamental element of formation of opinion of filing the appeal is missing then no appeal is deemed to be instituted in the eyes of law. Ordinarily, we do not non suit the Revenue for a procedural lapse but this case is of such a nature CUSAP Nos. 19 and 20 of 2009 4 that lapses one after the other have been committed. Therefore, the appeals are wholly without merit and are liable to be dismissed. For the reasons recorded above, both the appeals fail and the same are dismissed. A copy of this order be placed on the file of connected appeal. The record has been handed over by the Bench Secretary to the counsel for the Revenue. (M.M.Kumar) Judge (Jaswant Singh) 14.12.2009 Judge okg