1985 (4) TMI 281 - AT - Central Excise

Summary

Issues:
1. Validity of the authorization for filing the appeal.
2. Requirement of the Collector's opinion for filing an appeal.
3. Interpretation of the phrase "is of opinion" in Section 35-B(2) of the Central Excises and Salt Act.
4. Compliance with legal standards in sanctioning the appeal.

Analysis:

Issue 1: Validity of the authorization for filing the appeal
The appeal was challenged on the grounds that the authorization by the Collector was not signed by him. However, it was noted that the authorization was attested by the Assistant Collector as per the relevant rules. The Tribunal held that the objection regarding the lack of the Collector's signature could not be upheld based on the procedural requirements specified under rule 9(2) of the Customs, Excise and Gold (Control) Appellate Tribunal (Procedure) Rules, 1982.

Issue 2: Requirement of the Collector's opinion for filing an appeal
The provision under Section 35-B(2) of the Central Excises and Salt Act mandates that the Collector must form an opinion that the order passed by the Appellate Collector is not legal or proper before directing the filing of an appeal. The Respondent contended that the authorization did not reflect the Collector's opinion or application of mind. However, the Tribunal reasoned that the wording "is of opinion" in the statute implies that the Collector's opinion suffices without the need to disclose specific grounds or reasoning for the opinion.

Issue 3: Interpretation of the phrase "is of opinion"
The Tribunal referred to legal precedents and distinguished the present case from those involving factual circumstances for opinion formation. It was held that the Collector's opinion, as required under Section 35-B(2), is not subject to review by the Tribunal at the preliminary stage. The Tribunal emphasized that the Collector's opinion need not be based on specific factual circumstances as in other statutes.

Issue 4: Compliance with legal standards in sanctioning the appeal
The Tribunal examined the Collector's file and determined that the Collector had indeed considered all relevant facts before approving the appeal. It was observed that the Collector had fully apprised himself of the case and had applied his mind to the matter. The Tribunal further noted that the Collector's decision to sanction the appeal was based on a thorough consideration of the facts and was not merely guided by external sources such as Trade Advice.

In conclusion, the Tribunal overruled the preliminary objections raised by the Respondent and directed the appeal to proceed for hearing on its merits. The judgment emphasized the importance of the Collector's opinion and application of mind in sanctioning an appeal, highlighting that the sufficiency of grounds for forming the opinion is not within the Tribunal's purview at the initial stage.