Collector's opinion requirement and filing forum procedure cannot defeat the substantive right of appeal.
For an appeal under Section 35B(2) of the Central Excises and Salt Act, the Collector must apply his mind and form the requisite opinion that the order is not legal or proper; recording detailed reasons in the authorisation order is not necessary if the file shows proper consideration. Procedural objections about filing before one Bench and receipt by another after the time limit do not defeat the substantive right of appeal, because the filing forum is a matter of procedure and the rules recognise filing before another Bench for sufficient reasons. The commentary states that such objections failed and the appeal remained maintainable and within time.
Issues: (i) Whether the Collector had validly formed the requisite opinion for filing the appeal under Section 35B(2) of the Central Excises and Salt Act, 1944. (ii) Whether the appeal was not maintainable or barred because it was filed in the Regional Bench and then received in the Special Bench after the statutory time limit.
Issue (i): Whether the Collector had validly formed the requisite opinion for filing the appeal under Section 35B(2) of the Central Excises and Salt Act, 1944.
Analysis: The notings in the departmental file showed that the Order-in-Appeal was examined and a detailed note was placed before the Collector on its legality and propriety. On that basis, the Collector directed that an appeal be filed. Formation of opinion was therefore established, and disclosure of the reasons for that opinion was not necessary. The cited authorities supported the view that compliance with Section 35B(2) is satisfied when the Collector has applied his mind and formed the requisite opinion, even if the grounds are not recorded in the authorisation order.
Conclusion: The first preliminary objection failed and was overruled.
Issue (ii): Whether the appeal was not maintainable or barred because it was filed in the Regional Bench and then received in the Special Bench after the statutory time limit.
Analysis: The right of appeal under Section 35B(2) was contrasted with Section 35D(2), which governs the Bench by which such appeals are heard, not the Bench before which they must first be filed. Rule 6(1) of the CEGAT (Procedure) Rules, 1982, as amended by Notification No. 1/83 dated 26-12-1983, recognised filing before another Bench for sufficient reasons. The order also emphasised that the right of appeal could not be defeated by a procedural question as to the forum of filing, and that any delay issue would in any event be capable of consideration through condonation.
Conclusion: The second preliminary objection failed and was overruled.
Final Conclusion: The appeal was held to be maintainable and within time, and it was directed to be listed for hearing on merits.
Ratio Decidendi: For purposes of Section 35B(2), the Collector need only form the requisite opinion that the order is not legal or proper, and procedural questions about the bench before which an appeal is filed cannot defeat the substantive right of appeal.
TaxTMI 
AI Drafter ✕
TaxTMI 
