9911796707
TMI Blog2001 (3) TMI 598X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. The respondents were manufacturing goods under Chapter 85 of the CETA. They were also availing Modvat facility in terms of Rule 57A of the Central Excise Rules. It would appear that in the month of March, 1990 the factory of the respondents got fire and it is alleged that unutilized duty paid inputs on which Modvat credit was availed were reported to have been destroyed. A show cause notice dated 28-9-1990 was issued demanding Rs. 18,343.94 on the ground that the Modvat credit was not admissible to the duty paid inputs which were destroyed before they were actually being used in the manufacture of final products. The Assistant Collector by order-in-original dated 14-12-1990 dropped the demand on the ground that the duty cannot be demand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27) RLT 201] the Supreme Court held against the Department on the ground that authorization was not done in a proper way. 4. The Tribunal in a later judgment in the case of C.C.E., Bombay v. Nelco Ltd. - 2000 (37) RLT 611, after taking note of the said Rohit Paper Mills case decided by the Supreme Court, has held that the judgment of the Supreme Court has to be seen in the light of the facts revealed therein. In fact in paragraph 4 of the said judgment the Tribunal has observed as follows :- We have considered the submissions of both the sides. We observe that the Collector, Central Excise has authorized the Assistant Collector to prefer an appeal before the Appellate Tribunal against the impugned Order. No one will authorize anybody t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l in the case of Choksi Brothers [2001 (129) E.L.T. 110 (Tri.)] (Appeal No. E/2486/93) having considered all aspects of the matter, has decided in favour of the Department. 6. We have considered the matter in all perspective. The words not legal and proper as found in section 35B of the Central Excise Act have to be considered in a proper perspective. One of the views which is possible is as observed by the Tribunal in Nelco s case (37) RLT 611, viz. no one will authorize anyone to prefer an appeal unless and until he is of the opinion that the order in question is not legal and proper. But the fact that the section as enacted by the Parliament, states not legal and proper. Will it not have a mandatory effect when authorizing an appeal? T ..... X X X X Extracts X X X X X X X X Extracts X X X X
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