1983 (12) TMI 276

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....nce with the provisions contained in sub-section (1) of Section 35E of the Central Excises and Salt Act, 1944 (for short the Act). Shri Khaitan argued that on 9-5-1983 the Central Board of Excise & Customs (hereinafter called Board) had not passed an order as required under sub-section (1) of Section 35E and therefore there was no compliance with sub-section (4) of this Section. Such an appeal was therefore incompetent. 2. Shri Khader for the appellant brought it to our notice that the appellant had with respect to the same order and matter, filed another appeal on 3-11-1983. This appeal has been given the same number by the Registry. Shri Khadar explained that the second appeal was filed on 3-11-1983 by way of abundant caution Shri....

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....oard passing an order under sub-section (1) of Section 35E of the Act or an appeal being filed to the Appellate Tribunal in pursuance of the order as provided for in sub-section (4) are merely directory and an empty formality. A reading of the two sub-sections leaves no doubt that the compliance with the requirement of these two sub-sections are mandatory. They are not merely directory or empty formalities. Sub-section (1) of Section 35E requires a conscious decision of the Board after application of mind. An appeal under Sub-Section (4) is competent only when it is filed in pursuance of an order passed under sub-section (1). In the instant case, copy of memo dated April, 1983 from Government of India, Ministry of Finance, Department of Rev....