2008 (5) TMI 89

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..... oms Excise Gold (Control) Appellate Tribunal, Western Revision (sic) (Regional) Bench at Mumbai has dismissed an appeal solely on the ground that the Commissioner of Customs and Central Excise, Goa has failed to use the words 'not legal or proper' used in Section 35B(2) of the Central Excises and Salt Act which regulates the filing of appeals. 2. The Commissioner (Appeals), Mumbai allowed Modvat .....

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..... t legal or proper' and not if he is of the opinion that 'the judgment is bad in law'. 4. We have given our anxious consideration to the matter and are unable to uphold the CEGATs view. Section 35B(2) of the Act reads as follows: "The Commissioner of Central Excise may, if he is of opinion that an order passed by the Appellate Commissioner of Central Excise under section 35, as it stood immediate .....

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..... us the purpose of the provision is absolutely clear and the purpose is to require the Commissioner of appeal (sic) to form an opinion that the order is not legal or proper and only thereupon to direct the filing of such an appeal. Such opinion may be expressed in words which are not used by the Statute itself as has been done in this case. Here, the Commissioner of appeals (sic) formed an opinion .....

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..... uld have been passed without any application of mind and had merely said that the order is bad in law or for that matter not legal or proper. But we find that the Commissioner has 'clearly given his reasons for directing that an appeal be filed and that in his opinion, the Commissioner (Appeals) has wrongly allowed the benefit of Modvat credit on inadmissible items by applying a notification retro .....

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..... he appeal as not maintainable since the authorisation was not legal or proper and was made without applying the mind. The circumstances of the case before us are different. The order directing the appeal to be filed clearly discloses the reasons why the Commissioner formed an opinion that an appeal should be filed. Merely because he said that the order against which the appeal is proposed to be fi .....

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