Customs, Excise and Gold Tribunal - Delhi
Cce vs Bhabani Pigments Pvt. Ltd. on 16 April, 2002
Equivalent citations: 2002(103)ECR897(TRI.-DELHI), 2002(148)ELT323(TRI-DEL)
ORDER P.G. Chacko, Member (J)
1. This is an appeal filed by the department against the order of the Commissioner (Appeals) dated 31.3.2000.
2. Examined the records and heard both sides.
3. On a careful scrutiny of the records, I find that the jurisdictional Commissioner of Central Excise, in his authorisation issued to the Supdt. of Central Excise for filing this appeal, has neither examined the question whether the impugned order is proper or not, nor disclosed the grounds for holding the said order to be "not correct and legal." A Larger Bench of this Tribunal has, in CCE, Mumbai v. Bombay Switchgear , held that formation of opinion by the Collector/Commissioner that the order against which appeal is to be filed is not legal or proper should be reflected in the order authorising the filing of such appeal under Section 35B(2) of the Central Excise Act 1944. If the grounds for formation of such opinion by the Collector/ Commissioner are not reflected in the order authorising filing of the appeal, the Larger Bench held, such grounds should at least be contained in the note sheet. In the instant case, the grounds for formation of the Commissioner's view that the order [of the Commissioner (Appeals)] is not correct and legal are not forthcoming, nor has the relevant note sheet been brought on record to show that the Commissioner had recorded specific grounds for formation of such view. This apart, what is required under Sub-section (2) of Section 35B of the Act is that the Commissioner of Central Excise should form an opinion that the order sought to be appealed against is not legal or proper. In other words, the Commissioner should examine not only the legality but also the propriety of the order sought to be appealed against. In the present case, the propriety against. In the present case, the propriety aspect of the order of the Commissioner (Appeals) has not been examined by the jurisdictional Commissioner. For these reasons, it has to be held that the present appeal of the department is unauthorised. The appeal is dismissed as not maintainable.
4. The cross-objection is also rejected as not maintainable inasmuch as the respondents are in no way aggrieved by the order of the Commissioner (Appeals).