2000 (12) TMI 387

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.... for the appellant-Revenue and Shri Manoj Sanklecha, ld. advocate for the respondents. 3. The ld. counsel has raised a preliminary objection at the outset. He submits that the authorisation by the jurisdictional Collector for filing this appeal is not proper inasmuch as the words "not legal or proper" do not figure in the text of the authorisation. He submits that any authorisation to file appeal under Sec. 35B of the Central Excise Act can be given by the proper officer only after satisfying himself that the order sought to be appealed against is not legal or proper. According to him, unless these words are not used in the text of the authorisation, the satisfaction of the proper officer is not borne on record, which according to t....

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....of the authorisation by the ld. Collector available on record has been perused. It purports to authorise the Asstt. Commissioner to prefer the present appeal in pursuance of the provisions of Sec. 35B against the order of the Collector (Appeals). The words "not legal or proper" as used under sub-sec. (2) of Sec. 35B do not figure in this text of authorisation. The controversy before us revolves round this aspect. On a perusal of the decision cited by the ld. counsel, we note that in all the 4 cases considered by the Tribunal, a view was taken to the effect that, in the absence of appropriate noting by the authorising officer in his file, any authorisation by him for filing appeal under Sec. 35B(2) without expressly using the words "not lega....

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....cient indication that the Collector considered the impugned order as not legal or proper and is one which required to be appealed against. We have perused the Tribunal's order in Nelco Ltd. (supra), and we are inclined to follow the same. In the instant case, we further note that the Revenue appeal was filed as early as in 1993 and the records show that an objection like the one taken by the ld. advocate before us was never taken by, or on behalf of, the respondents at any stage of the proceedings before. The records of the proceedings clearly disclose that, at least on one of the occasions, the authorisation of the Collector was considered by the Bench in the presence of both the sides. Nevertheless, no objection was raised at that time. A....