(Above Circular number has been corrected vide CIR NO. 826/03/2006-CX, DT. 22/02/2006)

I am directed to invite your attention to the provision of sub section 2 of section 35B of the Central Excise Act, 1944 or section 129A of the Customs Act, 1962, which interalia provides that the committee of Commissioners of Central Excise or the Committee of Commissioner of Customs, as the case may be, may, if it is of the opinion that an order passed by the Appellate Commissioner of Central Excise under section 35 or the order passed by the Appellate Commissioner of Customs under section 128, as the case may be, as it stood immediately before the appointed day, or the Commissioner (Appeals) under section 35A or under section 128A, is not legal or proper, direct any Central Excise Officer or the proper Officer authorized by him in this behalf (hereafter in this Chapter referred to as the authorized officer) to appeal on its behalf to the Appellate Tribunal against such order. Similarly, sub-section 1 of section 35E of Central Excise Act, 1944 or section 129D of Customs Act, 1962, provide that the Committee of Chief Commissioner of Central Excise or the Committee of Chief Commissioner of Customs, as the case may be, may of its own motion, call for and examine the record of any proceedings in which a Commissioner of Central Excise or a Commissioner of Customs, as the case may be, as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such Commissioner or any other. Commissioner to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the Committee of Chief Commissioners of Central Excise or Committee of Chief Commissioner of Customs, as the case may be, in its order.

2. The Board has received a number of references from the field formations concerning the procedure to be followed while implementing the provisions of subsection 1(B) of section 35B and 35E of Central Excise Act, 1944 and sub-section 1(B) of section 129A and 129D of the Customs Act, 1962, in case of difference of opinion between the members of the Committee.

3. The suggestions of the Chief Commissioners on the matter have been examined and considering the above legal position, Board has decided that when two members take a common view to file an appeal or not to file an appeal, in a particular case there would be no difference of opinion and the same would be followed. However, in a rare case when the two members could take different views i.e, one member takes a view to file an appeal, and the other member opposes it, the decision should be to file an appeal.

4. Receipt of this Circular may please be acknowledged.

5. Hindi version will follow.

F.No.390/12/2005-JC(BMB)
 

(Kailash Sethi)
Member (L & J)

I am directed to refer to Board's Circular No.824/1/2006 dated 06/02/2006 and to state that inadvertently Board has already assigned the said Circular No. on another issue pertaining to the Central Excise Matter. Accordingly, the number assigned to the above said circular shall now read as "825/2/2006-CX" instead of "824/1/2006-CX".

2. The field formations may suitably be informed.

3. Receipt of this Circular may please be acknowledged.

4. Hindi version will follow.

F.No.390/12/2005-JC(BMB)
 

(Sungita Sharma)
Director (Review)