Departmental appeal maintainability depends on recorded Collector satisfaction that the order is not legal or proper before authorisation.

Departmental appeals under Section 35B(2) of the Central Excises and Salt Act are maintainable only when the Collector first forms and records an opinion that the impugned order is not legal or proper and then authorises the filing officer on that basis. The authorisation must itself show that this statutory satisfaction was applied before institution of the appeal. Where the authorisation does not expressly record that opinion, the condition precedent is not met and the appeal is incompetent. The consequence is dismissal of the challenge and the impugned order remains undisturbed.

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Issues: Whether the appeal was maintainable when the Collector's authorisation did not expressly record an opinion that the impugned order was not legal or proper under Section 35B(2) of the Central Excises and Salt Act.

Analysis: The statutory scheme required the Collector to form an opinion that the order appealed against was not legal or proper and to authorise an officer to file the appeal on that basis. The authorisation had to reflect that the requisite mind was applied before the appeal was instituted. In the absence of such an averment in the authorisation, the condition precedent for filing the appeal was not satisfied.

Conclusion: The appeal was not maintainable and was liable to be dismissed.

Final Conclusion: The challenge failed on the ground of defective authorisation, leaving the impugned order undisturbed.

Ratio Decidendi: An appeal by the department under Section 35B(2) is maintainable only if the Collector has first formed and recorded the requisite opinion that the order is not legal or proper and has authorised the officer on that basis.

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