9911796707
TMI Blog1988 (2) TMI 365X X X X Extracts X X X X X X X X Extracts X X X X ..... is of the Collector s opinion that the Order of the Appellate Collector was not correct and in conformity with Rule 11 of the Central Excise Rules and the instructions contained in Notification No. 198/76, dated 16-6-1976 and as such is vague and in abstraction affording no reasonable opportunity to the respondent for controverting them. 3. When the appeal was taken up Shri K.K. Banerjee, learned counsel for the respondents while reiterating the objections taken up in the cross objections raised a preliminary objection that Shri Jeet Ram Kait, Deputy Collector of Central Excise, Calcutta, who had filed the present appeal was not authorised by the Collector of Central Excise as required under sub-section (2) of Section 35B of the Central Excises and Salt Act, 1944 as there is no such authorisation on record. In reply the learned Departmental Representative submitted that Shri Jeet Ram Kait was duly authorised to file the appeal and it appears that the authorisation could not be filed due to inadvertence. Accordingly, he sought time to produce the same. This request of the learned representative was acceded to by the Bench on 4-1-1988 and the learned departmental representative wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r of Central Excise authorised Shri Jeet Ram Kait, Deputy Collector to file the present appeal on his behalf vide his authorisation Order dated 20-11-1982. In the result the instant appeal was filed by Shri Jeet Ram Kait, Dy. Collector of Central Excise. To the objection raised by the learned counsel for the respondent that the said authorisation does not disclose that the Collector had applied his mind before authorising Shri Kait to file the appeal, Shri L.C. Chakraborty submitted that it is a peculiar case on its own strength and while considering the question as to whether the Collector before authorising the Deputy Collector applied his mind about the legality or propriety of the impugned order the entire sequence of the events narrated above and the review proposal filed by the Collector before the Government of India before the constitution of this Tribunal to be looked into as one and the same transaction. While elaborating, he submitted that in para 5 of the review proposal submitted to the Government of India before the constitution of the Tribunal the Collector of Central Excise after stating the gist of the impugned order and the issue involved in the case did clearly e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) to appeal on his behalf to the Appellate Tribunal against such order. The Collector vide his order dated 20-11-1982 has authorised Shri Jeet Ram Kait under the said sub-section (2) of Section 35B. The photo-copy of the said authorisation is on record which reads as follows - OFFICE OF THE COLLECTOR OF CENTRAL EXCISE : CALCUTTA 15/1-STRAND ROAD : CUSTOMS HOUSE : CALCUTTA-1. ORDER Dated 20-11-1982. In exercise of the powers conferred upon me under sub-section (2) of Section 35B of the Central Excises and Salt Act, 1944, hereby authorise the un-dernoted officer of this Collectorate to act on my behalf in the matter of filing appeal/memorandum of cross objection in respect of case noted herebelow before the Customs, Excise and Gold (Control) Appellate Tribunal, Calcutta/Delhi. Sd/- B.N. Rangwani, Collector. Designation. Deputy Collector. Name of the officer, Sri Jeet Ram Kait, Name and address of the Assessee. M/s. K. Manibhai Co. 21, R.N. Mukherjee Road Calcutta - 700001. Vide Order-in-Appeal No. 570-571/Cal/82, dated -13-7-1982 passed by the Appellate Collector of Central Excise, Calcutta." 8. From a plain reading of sub-section (2) of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Fasteners Ltd., supra wherein this Tribunal after noticing two decisions of the Apex Court rendered in the case of Barium Chemicals Ltd. v. Company Law Board, AIR 1967 SC 295 and Rohtas Industries Ltd. v. S.D. Agarwal, AIR 1969 SC 707 held that Section 35B(2) of the Central Excises Salt Act only requires that the Collector should be of opinion that the order of the Appellate Collector was not legal or proper and in that view of the matter the opinion of the Collector would not be open for review by this Tribunal at the preliminary stage. In that case it was further held that failure to disclose grounds of his opinion by the Collector for filing the appeal in his authorisation order is also not fatal for the aforesaid reasons. Thus following the said decisions we hold that the authorisation is valid. The case of Gonterman Peipers (India) Limited v. Additional Secretary to the GOI, supra is distinguishable on the facts of that case. In that case the validity of the review show cause notice was challenged before the Hon ble Calcutta High Court on the ground that there was no material to show that the order sought to be revised therein was not correct, legal, and proper. To examine t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion was valid. 13. [Order per : D.C. Mandal, Member (T)]. -I have gone through the foregoing order recorded by Brother Shri Agarwal, Member (Judicial). I am of the view that Section 35B(2) of the Central Excises and Salt Act, 1944 does not cast a legal obligation on the Collector to record the reasons or grounds for which he is of the opinion that the order of the Collector (Appeals) is not proper or legal. What is required by this Section is that the Collector should form an opinion that the order passed by the Appellate Collector under Section 35 of the Act as it stood prior to 11-10-1982 or the Collector (Appeals) under Section 35A of the Act as it stands with effect from 11-10-1982, is not legal or proper and then he should direct any Central Excise Officer authorised by him in this behalf to appeal on his behalf to the Appellate Tribunal against such order. Therefore, if the Collector forms an opinion as required and he directs and authorises a Central Excise Officer to file the appeal then such an authorisation will not become invalid due to absence of the reasons or grounds for which the Collector has formed the opinion. In the present case, in the review proposal sent to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act that in the nothings at pages (1) to (5) of the Collector s file, photo-copy of which has been filed before us by the learned D.R., there is no indication that the Collector had signed the authorisation in this case although the notings started from the stage of sending the review proposal to the Additional Secretary (R.A. Unit), Ministry of Finance and the note sheets end with the noting dated 16-12-1987. The Bench wanted to see the file containing the original authorisation of the Collector, if any, in this case. The learned D.R. Shri Chakraborty has stated that the original file is not available as it was a very old case and there was bifurcation of the Collectorate into various segments. I, however, find that authorisation dated 20-11-1982 was attested by Superintendent of Central Excise (Technical) on 30-3-1983. It means that the copy of the authorisation which was available in the file was exactly represented the photo-copy which has been filed before us. This goes to establish that the Collector did not sign any authorisation in this case and his office has used a copy of the general authorisation after adding the name and address of the assessee and the order-in-appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
