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2013 (10) TMI 1048 - ALLAHABAD HIGH COURTAppeal u/s 35-B – authorisation by the Committee of Commissioners - CESTAT dismissed the appeal filed by revenue observing that, this is another occasion that has come to notice where review order appearing at pages 4 to 10 of appeal folder indicates that while that order was authenticated by one of member Commissioner of the committee on 23.06.2005, the other member authenticated on 24.06.2005. There was no ad idem on the same date either on 23.06.2005 or 24.06.2005 - Held that:- The opinion of the Board of Commissioner of the Central Excise under Section 35B is not justiceable on merits in Court - The opinion to be formed by the Board of Commissioners is a prima facie opinion and is not conclusive in nature which may be subject to challenge by the assessee on merits - If such an order is subjected to judicial review, it may give rise to taking ground to be agitated in almost every case and will cause unnecessary delay in disposal of the appeals under Section 35B of the Act. The orders passed by the designated authorities, by which the department authorises an appeal to be filed, is to avoid the filing of frivolous and unnecessary appeals - Such an order may be challenged, like a sanction in a criminal case only on the ground of non-application of mind, absence of material on which the mind has been applied by the authority, and lack of bonafides - The merit of the order of the Committee of Commissioner of Central Excise granting approval may not be subjected to challenge, as the appeal in any case has to be considered and decided on merit by the Appellate Authority on merits under Section 35B of the Act – Matter remanded back to CESTAT to decide the appeal. - Decided in favor of revenue.
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