COMMISSIONER OF CENTRAL EXCISE, MUMBAI Vs. BOMBAY SWITCHGEAR

JUDGEMENT

(1.) THE question that has come up for consideration is whether a mere authorisation by the Commissioner of Central Excise under Section 35B(2) is sufficient to express his satisfaction to the effect that the order directed to be appealed against is not legal or proper.

(2.) LEARNED Departmental Representative submitted that even if it is not mentioned in the order of authorisation that the Commissioner was satisfied about the legality or propriety of the order appealed against, the appeal is liable to be entertained under section 35B(2) of the Central Excise Act. In support of his contention he placed reliance on a decision of the Supreme Court in Collector of Central Excise v. Berger Paints India Ltd. : 1990 (47) ELT 210, two decisions of the Tribunal CCE, Bombay v. Nelco Ltd. 2000 (37) RLT 611 and an unreported decision in appeal No. E/2486/93 -A (M/s. Choksi Brothers). In 47 ELT 210 the question came for consideration was whether a general authorisation or note sheet order by the Collector authorising for filing an appeal would be sufficient compliance of Rule 9(2) of the CEGAT (Procedure) Rules, 1982. On going through the judgment we find that even though the authorisation was in general terms directing appeal to be filed, all the relevant of the case aspects had been considered by the Collector as reflected from the nothing in the file which had been quoted in the judgment. After referring to the nothing it was held as follows:

(3.) WE have gone through the unreported decision, copy of which was placed before us by the Learned Departmental Representative. We find that after referring to the arguments put forward by the Revenue on the basis of Berger Paints India Ltd. ultimately the Bench did not accept the objection raised on behalf of the respondent. It was found that even though Revenue's appeal was filed as filed as early as in 1993 and came on several occasions for hearing, this objection was never raised by the respondent and at a late stage it is not just and proper to reject the appeal on the above ground. We there fore do not consider this decision an authority on the issue.