1998 (4) TMI 138 - SC - Central Excise

Summary

Issues involved: Authorization for filing appeal without proper application of mind by the Collector u/s 35B(2) of CESA.

Summary:
The Supreme Court, in the present case, found that the Collector had simply authorized the Superintendent to file an appeal without applying her mind, as required by Section 35B(2) of CESA. The Court emphasized that the Collector should have indicated whether the order passed by the authorities below was legal or not. Since the authorization was deemed neither legal nor proper, the appeal was dismissed as not maintainable.

The provisions of Section 35B(2) mandate that a Central Excise Officer can file an appeal only after the Collector forms an opinion that the order to be appealed against is "not legal or proper." In this case, the Court noted that the Collector's noting, which would have shown the basis for filing the appeal, was not presented before them. The memorandum of appeal referred to detailed reasoning provided by the subordinate authority, endorsed by the Collector, but without the actual note sheet, the Court could not verify this information.

The Revenue's Counsel cited a previous judgment where the Collector had endorsed a noting stating that the order to be appealed against was not legal and proper. However, since the submission made by the Collector in the present case was not produced, the Court could not rely on it. Consequently, the appeal was dismissed, and no costs were awarded in this matter.