Mandatory departmental authorisation under Central Excise appeal provisions is a condition precedent, not a mere formality.

Authorisation by the Committee of Commissioners under Section 35B(2) of the Central Excise Act is a mandatory condition precedent for a departmental appeal to the Appellate Tribunal against an order of the Commissioner (Appeals). The provision was construed as a safeguard requiring application of mind at the departmental level before litigation is initiated, and the word "may" was held not to make authorisation optional. Absence of proper authorisation at the time of filing was treated as an incurable defect, so the appeal would not be maintainable without it.

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Issues: Whether authorisation by the Committee of Commissioners under Section 35B(2) of the Central Excise Act, 1944 is mandatory for filing an appeal to the Appellate Tribunal against an order passed by the Commissioner (Appeals).

Analysis: The appeal under Section 35B against an order of the Commissioner (Appeals) can be pursued by the Department only after the Committee of Commissioners forms the requisite opinion and directs an authorised Central Excise Officer to appeal. The statutory scheme was treated as a safeguard to ensure application of mind at the departmental level before litigation is initiated. Reading the provision as a whole, and applying strict construction to the fiscal statute, the Court held that the word "may" in sub-section (2) does not make the requirement optional. The authorisation was viewed as a condition precedent, and absence of proper authorisation at the time of filing was held to be an incurable defect.

Conclusion: Authorisation under Section 35B(2) is mandatory and not directory; the Department's appeal was not maintainable without it.

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