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TMI Blog2007 (10) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... 03-Mum. The appeal is admitted on the following reframed question of law :- "Whether on the facts and in the circumstances of the case, the Tribunal was justified in holding that the Commissioner has not recorded satisfaction regarding the legality and propriety of the order appealed against as required under section 35E(2) of the Central Excise Act, 1944 and, therefore, the Commissioner (A) was justified in dismissing the appeal filed by the revenue ?" 2. By consent of both the parties, the appeal is taken up for final hearing. 3. In this case, a show cause notice was issued to the respondent on 3/4/1996 calling upon them to show cause as to why Modvat credit of additional duty of excise leviable under Additional Duties of Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder dated 21 st February, 2006 upheld the order of Commissioner of Central Excise (A) by holding that the Commissioner had not recorded satisfaction as required under section 35 E(2) and, therefore, the appeal filed by the revenue was not maintainable. Challenging the aforesaid order, the revenue has filed the present appeal. 7. Mr. Jetly, learned counsel appearing on behalf of the revenue submitted that under section 35E(2) of the Excise Act while authorising appeal against the order in original, it was not mandatory for the Commissioner to use the words "not legal and proper" What is relevant under section 35E(2) is that on being satisfied himself that the order in original is not legal and proper, the Commissioner can authorise fil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified by the (Commissioner of Central Excise) in his order. " 10. Section 35E(2) of the Central Excise Act empowers the Commissioner to pass an order authorising filing of an appeal against an order passed by an authority subordinate to him, on his being satisfied that the order of the subordinate authority is not legal and proper. The order passed by the Commissioner under section 35E(2) of the Excise Act must reflect the satisfaction arrived at by the Commissioner. 11. In the present case, the Commissioner after perusing the order in original dated 18/1/2002 has inter alia recorded as follows :- "Rule 57C of Central Excise Rules, 1944 it is very clear that no credit of duty paid on inputs used in or in relation to the manufa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atisfaction as contemplated under section 35E(2) of the Central Excise Act. 12. Reliance placed by the counsel for the respondents on the decision of the Apex Court in the case of Rohit Pulp Paper Mills (supra) is wholly misplaced. In that case, the finding recorded by the Tribunal was that the Collector of Central Excise had simply authorised the Superintendent to file an appeal without application of mind. Thus, in that case, apart from authorisation there was no other material on record to suggest that the Collector had come to the conclusion that the order against which appeal was authorised was not legal and proper. Moreover, before the Apex Court the revenue failed to furnish noting, if any, maintained by the Collector rec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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