Customs, Excise and Gold Tribunal - Delhi
Collector Of C. Ex. vs Asiatic Oxygen Limited on 3 February, 1987
Equivalent citations: 1989(42)ELT247(TRI-DEL)
ORDER
S.D. Jha, Vice-President (J)
1. Vide order dated 26-12-1986 we have inter alia granted time to Mrs. Chander to ascertain from the appellant - Collector of Central Excise, Calcutta, whether any authorisation in terms of Sub-section (2) of Section 35-B of the Central Excises and Salt Act, 1944 was issued in favour of the Assistant Collector who presented the appeal to the Tribunal.
2. Smt. Chander today stated that she has addressed a letter by name to the Collector of Central Excise, Bolpur but no reply to the same had been received. She prayed for more time to furnish this information. Shri K.K. Ganguly, learned Consultant for the other party strongly opposed this request. He stated that he had come all the way from Calcutta for this matter. The amount of duty involved was small and considering all the facts and circumstances of the case no further time should be granted to the appellant to get the information or remedy this defect.
3. Duty amount involved in the present appeal is less than Rs. 100/- and sufficient time has already been granted to the appellant. We do not think that any further indulgence should be shown to the appellant. We, therefore, reject Smt. Chander's prayer for grant of further time and proceed to consider the appeal on its merits.
4. Section 35-B(2) of the Central Excises and Salt Act, 1944 for ease of reference is reproduced below :-
"The Collector of Central Excise may, if he is of opinion that an order passed by the Appellate Collector of Central Excise under Section 35 as it stood immediately before the appointed day, or the Collector (Appeals) under Section 35-A, is not legal or proper, direct any Central Excise Officer authorized by him in this behalf (hereafter in this Chapter referred to as the authorised officer) to appeal on his behalf to the Appellate Tribunal against such order."
From the provision it is seen that forming of Tequisite opinion by the Collector of Central Excise that order passed by the Appellate Collector under Section 35-A was not legal or proper and directing and authorising the Central Excise Officer to file an appeal in this behalf was pre-condition which alone could make the appeal presented by the Assistant Collector of Central Excise before the Tribunal maintainable. As already referred to in our earlier order dated 26-12-1986, such authorisation or paper showing Collector had come to the requisite opinion are not available in the J.D.R.'s file nor copy of any such order in terms of the provision have been placed in spite of grant of time on the file of the Tribunal. Appeal, therefore, is not maintainable. The appeal is rejected as not maintainable.