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TMI Blog2000 (11) TMI 1091X X X X Extracts X X X X X X X X Extracts X X X X ..... resaid provision that the order of the Commissioner (Appeals) was not legal or proper . 2. In this situation a number of appeals have been dismissed by a number of Benches of the Tribunal. When we asked Smt. Reena Arya, ld. SDR why this appeal should not meet the same fate, she relied upon the Tribunal judgment in the case of CCE, Bombay v. Nelco Ltd. [2000 (37) RLT 611 (CEGAT)]. In this judgment in the face of the Supreme Court judgment in the case of CCE v. Rohit Pulp Paper Mills [1998 (101) E.L.T. 5 (S.C.) = 1998 (27) RLT 201 (S.C.)] the Tribunal in identical circumstances has held such defective authorisation as empowering the filing of an appeal. 3. We have seen the cited judgment. We have also seen the cited Supreme Court order u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntly clear. It has been held that in the absence of the wording used in the proviso to the said section in the body of the show cause notice the extended period for making of the demand could not be invoked. [CCE v. H.M.M. Ltd. - 1995 (76) E.L.T. 497 (S.C.)]. In a particular argument it was suggested to the Hon ble Supreme Court that the language of the show cause notice indicated the existence of suppression etc. The Court did not find favour with that argument. [Collector v. H.M.M. Ltd. - 1995 (76) E.L.T. 497 (S.C.)] [CCE, Nagpur v. V.P. Lamination - 1997 (89) E.L.T. 440 (S.C.)]. 7. Even in the cited case of Rohit Pulp Paper Mills, the Supreme Court has termed the phrases legal and proper to appear in the authorisation as a pre-requis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 35B(2) of the Act, the Jurisdictional Commissioner is required to use utmost discretion and circumspection. He has to peruse the judgment and assess the merits thereof. He thereafter has to decide whether the order is deficient in legality, or in propriety or both. He has thereafter to make a definitive statement of his finding. Then, and then alone he can use the very significant power vested in him by this provision. 10. Where a Commissioner does not even care to put on record the significant phrase which is a pre-requisite as prescribed by the Supreme Court, it is difficult to assume that he has applied his mind to the issue before him. Infact it is an extremely simple step once he has made a declaration to that effect. The Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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