TaxTMI 
TaxTMI 
2007 (10) TMI 99
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....as not recorded satisfaction regarding the legality and propriety of the order appealed against as required under section 35E(2) of the Central Excise Act, 1944 and, therefore, the Commissioner (A) was justified in dismissing the appeal filed by the revenue ?" 2. By consent of both the parties, the appeal is taken up for final hearing. 3. In this case, a show cause notice was issued to the respondent on 3/4/1996 calling upon them to show cause as to why Modvat credit of additional duty of excise leviable under Additional Duties of Excise (Goods of Special Importance) Act, 1957 availed by them to the tune of Rs.1,07,554/- should not be disallowed / reversed or recovered under Rule 57 I of the Central Excise Rules, 1994 read with sectio....
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....ppeal filed by the revenue was not maintainable. Challenging the aforesaid order, the revenue has filed the present appeal. 7. Mr. Jetly, learned counsel appearing on behalf of the revenue submitted that under section 35E(2) of the Excise Act while authorising appeal against the order in original, it was not mandatory for the Commissioner to use the words "not legal and proper" What is relevant under section 35E(2) is that on being satisfied himself that the order in original is not legal and proper, the Commissioner can authorise filing of the appeal. In the present case, the order passed by the Commissioner clearly shows application of mind and his satisfaction regarding the legality of the order in original and, therefore, the appeal ....
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.... authority subordinate to him, on his being satisfied that the order of the subordinate authority is not legal and proper. The order passed by the Commissioner under section 35E(2) of the Excise Act must reflect the satisfaction arrived at by the Commissioner. 11. In the present case, the Commissioner after perusing the order in original dated 18/1/2002 has inter alia recorded as follows :- "Rule 57C of Central Excise Rules, 1944 it is very clear that no credit of duty paid on inputs used in or in relation to the manufacture of final product whether directly or indirectly or whether contained in the final products or not shall be allowed if the final product is exempt from the whole of duty of excise levied thereon or is charged to ni....
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....s wholly misplaced. In that case, the finding recorded by the Tribunal was that the Collector of Central Excise had simply authorised the Superintendent to file an appeal without application of mind. Thus, in that case, apart from authorisation there was no other material on record to suggest that the Collector had come to the conclusion that the order against which appeal was authorised was not legal and proper. Moreover, before the Apex Court the revenue failed to furnish noting, if any, maintained by the Collector recording reasons for not accepting the decision of the lower authority. In those circumstances, the Apex Court held that in the absence of any material to show that the Collector was satisfied that the order of the lower autho....