Maintainability of departmental appeal depends on recorded opinion that the order is not legal or proper; absent authorisation fails.

An appeal under section 35B(2) of the Central Excise Act was held not maintainable because the authorisation did not record the Commissioner's formation of opinion that the impugned order was not legal or proper. The document treats this formation of opinion as a necessary precondition for a valid departmental appeal, and the absence of such recorded satisfaction rendered the appeal defective. The objection to maintainability was therefore accepted and the appeal was dismissed.

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Issues: Whether the appeal was maintainable when the authorisation issued by the Collector did not record formation of opinion that the impugned order was not legal or proper under section 35B(2) of the Central Excise Act, 1944.

Analysis: Section 35B(2) requires the Commissioner to form an opinion that the order appealed against is not legal or proper before directing an authorised officer to file the appeal. The authorisation in the present case did not reflect such formation of opinion. In view of the settled position that this is a necessary precondition for a valid appeal, the objection to maintainability was accepted.

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

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