1988 (2) TMI 365 - AT - Central Excise

Summary

Issues Involved:
1. Validity of the Department's appeal due to lack of proper authorisation.
2. Compliance with procedural requirements under Rule 9(2) of the Customs, Central Excise and Gold (Control) Appellate Tribunal (Procedure) Rules, 1982.
3. Whether the Collector applied his mind before authorising the appeal.

Detailed Analysis:

1. Validity of the Department's Appeal Due to Lack of Proper Authorisation:
The primary issue revolved around whether the appeal filed by Shri Jeet Ram Kait, Deputy Collector of Central Excise, was authorised correctly by the Collector of Central Excise as mandated under sub-section (2) of Section 35B of the Central Excises and Salt Act, 1944. The respondents contended that the authorisation did not demonstrate that the Collector had applied his mind before authorising the appeal. The Department argued that the authorisation was valid, considering the transitional period and the sequence of events leading to the filing of the appeal. The Tribunal examined the photo-copy of the authorisation and relevant papers, concluding that the authorisation was valid, as it was supported by the review proposal submitted to the Government of India, which indicated that the Collector had applied his mind.

2. Compliance with Procedural Requirements Under Rule 9(2):
The respondents also raised objections based on procedural grounds, arguing that the appeal did not accompany the Collector's direction to file the appeal, nor did it contain the grounds forming the basis of the Collector's opinion. The Tribunal considered these objections but found that the peculiar facts and circumstances of the case, including the transitional period and the review proposal, demonstrated that the Collector had applied his mind and directed the filing of the appeal. The Tribunal held that the absence of explicit mention of the Collector's opinion in the authorisation was not fatal to the Department's case.

3. Whether the Collector Applied His Mind Before Authorising the Appeal:
The respondents argued that the authorisation did not disclose that the Collector had applied his mind. The Tribunal, after reviewing the sequence of events and the review proposal, concluded that the Collector had indeed applied his mind. The review proposal included a detailed analysis of the impugned order and the reasons why the Collector believed it was not correct. The Tribunal found that this demonstrated the Collector's application of mind, thus validating the authorisation.

Separate Judgments:
- Member (J): G.P. Agarwal held that the authorisation was valid based on the review proposal and the sequence of events, indicating that the Collector had applied his mind.
- Member (T): D.C. Mandal disagreed, stating that the authorisation was invalid as it did not bear the Collector's signature and appeared to be a general authorisation with specific details added later by a subordinate officer.
- Member (T): V.P. Gulati concurred with D.C. Mandal, holding that the appeal was not maintainable due to the lack of a proper authorisation.

Final Order:
The majority view held that there was no proper authorisation from the Collector of Central Excise, Calcutta under Section 35-B(2) of the Central Excises and Salt Act, 1944, rendering the appeals not maintainable. Consequently, the appeals were dismissed.