SUPREME COURT OF INDIA

Before:- S.P. Bharucha and B.N. Kirpal, JJ.

Civil Appeal No. 4255 of 1997. D/d. 30.4.1998.

Collector of Central Excise, Vadodra - Appellant

Versus

M/s. Rohit Pulp Paper Mills - Respondent

Central Excises and Salt Act, 1944, Section 35B(2) - Authorisation to file Appeal - Formation of opinion by the Collector that the order against which the appeal is to be filed is not 'legal or proper' - Is a pre-requisite for the direction to any Central Excise Officer to file an appeal under Section 35B(2) of the Act.

[Para 2]

Cases Referred :-

Collector of Central Excise v. Berger Paints India Ltd., (1990) 47 ELT 210.

JUDGMENT

The Revenue is in appeal against an order of CEGAT which holds thus :-

"In the facts and circumstances of the case and after going through the relevant authorisation and note sheet order, we are of the view that the Collector simply authorised the Superintendent to file an appeal without applying her mind. She should, have indicated whether order passed by the authorities below is legal or otherwise. In the absence of such averment as envisaged in Section 35B(2) of CESA and since the authorisation is neither legal nor proper, the appeal is dismissed as not maintainable. Ordered accordingly."

2. The provisions of Section 35B(2) clearly require as a pre-requisite to the direction to any Central Excise Officer to file an appeal. The formation of the opinion by the Collector that the order against which the appeal is to be filed is "not legal or proper". We asked the learned counsel to show us what the noting was that the Collector had made in this case. It is not before us. Learned counsel referred to ground 'B' of memorandum of appeal which states "Because the Tribunal has failed to consider that in the instant case, as can be seen from the note sheet, the subordinate authority has given detailed reasoning for filing appeal and same note was endorsed by the Collector. "We would have seen from the note sheet if it had been produced before us.

3. Learned counsel for the Revenue referred to the judgment of this Court in Collector of Central Excise v. Berger Paints India Ltd., (1990) 47 ELT 210. This was a case where the Collector had endorsed the noting submitted to him which stated that the order proposed to be appealed against was not legal and proper. The judgment does not assist the Revenue. Having regard to the fact that it has failed to produce the submission, if any, that the Collector in the present case has endorsed. In the circumstances, the appeal is dismissed. No order as to costs.

Appeal dismissed.