ORDER
G.P. Agarwal, Member (J)
1. This is an appeal filed by the Department against the Order-in-Appeal No. 570-57l/Cal/82 dated 13.7.1982 passed by the Appellate Collector of Central Excise, Calcutta, whereby the Appellate Collector allowed the claim of the respondents for refund and set aside the Order-in-Original passed by the Assistant Collector of Central Excise, Calcutta-I Division.
2. The respondents have also filed cross-objections inter alia pleading that the appeal filed by the department does not accompany copy of the Collector’s direction to file the appeal as required under Sub-rule (2) of Rule 9 of the Customs, Central Excise and Gold (Control) Appellate Tribunal (Procedure) Rules, 1982 and further that the appeal does not contain the grounds forming the basis of the Collector’s opinion that the Order of the Appellate Collector was not correct and in conformity with Rule 11 of the Central Excise Rules and the instructions contained in Notification No. 198/76 dated 16.6.1976 and as such is vague and in abstraction affording no reasonable opportunity to the respondent for controverting them.
3. When the appeal was taken up Shri K.K. Banerjee, learned Counsel for the respondents while reiterating the objections taken up in the cross-objections raised a preliminary objection that Shri Jeet Ram Kait, Deputy Collector of Central Excise, Calcutta, who had filed the present appeal was not authorised by the Collector of Central Excise as required under Sub-section (2) of Section 35B of the Central Excises and Salt Act, 1944 as there is no such authorisation on record. In reply the learned Departmental Representative submitted that Shri Jeet Ram Kait was duly authorised to file the appeal and it appears that the authorisation could not be filed due to inadvertence. Accordingly he sought time to produce the same. This request of the learned representative was acceded to by the Bench on 4.1.1988 and the learned departmental representative was asked to produce the Collector’s file from which the authorisation was issued. Consequently the learned departmental representative filed the photo-copy of the authorisation and also certain relevant papers of the Collector’s file.
4. At the time of hearing of the appeal the learned Counsel for the respondents after perusing the authorisation filed by the department as aforesaid submitted that the alleged authorisation does not disclose that the Collector had applied his mind before authorising Shri Jeet Ram Kait, Deputy Collector to file the appeal. Accordingly we proceeded to hear the parties on the point of authorisation only.
5. Shri K.K. Banerjee, learned Counsel for the respondents submitted that in the authorisation dated 20.11.1982 the Collector of Central Excise has not said that the impugned order passed by the Appellate Collector of Central Excise is not legal or proper. Consequently the said authorisation is no authorisation in terms of the provisions of Sub-section (2) of Section 35B of the Central Excises and Salt Act, 1944. To buttress his arguments Shri K.K. Banerjee cited the case of Gonterman Peipers (India) Limited v. Additional Secretary to the Government of India and Collector of Central Excise, Calcutta v. Koilite Inds. P. Ltd. .
6. In reply Shri L.C. Chakraborty, learned JDR submitted that the instant case relates to the transitional period, inasmuch as at the time of passing of the impugned order by the Appellate Collector on 13.7.1982 this Tribunal was not in existence and at the relevant time the Government was competent to review the impugned order under erstwhile Sec. 36(2) of the Central Excises and Salt Act, 1944. Accordingly a proposal for review under Sec. 36(2), ibid was sent by the Collector of Central Excise, Calcutta himself to the Government of India on 6.10.1982 i.e. to say before the constitution of the Tribunal and by the time the Government of India could review the impugned order, this Tribunal came into existence on 11.10.1982 with/the result the Government of India returned the said review proposal to the Collector of Central Excise, Calcutta for taking necessary action under Sec. 35B of the Central Excises and Salt Act, 1944 vide their letter dated 18.10.1982. On receipt of these papers back from the Government of India the Collector of Central Excise authorised Shri Jeet Ram Kait, Deputy Collector to file the present appeal on his behalf vide his authorisation Order dated 20.11.1982. In the result the instant appeal was filed by Shri Jeet Ram Kait, Dy. Collector of Central Excise. To the objection raised by the learned Counsel for the respondent that the said authorisation does not disclose that the Collector had applied his mind before authorising Shri Kait to file the appeal, Shri L.C. Chakraborty submitted that it is a peculiar case on its own strength and while considering the question as to whether the Collector before authorising the Deputy Collector applied his mind about the legality or propriety of the impugned order the entire sequence of the events narrated above and the review proposal filed by the Collector before the Government of India before the constitution of this Tribunal to be looked into as one and the same transaction. While elaborating, he submitted that in para 5 of the review proposal submitted to the Government of India before the constitution of the Tribunal the Collector of Central Excise after stating the gist of the impugned order and the issue involved in the case did clearly express his opinion that the conclusion of the Appellate Collector is not correct and is not in conformity with Rule 11 of the Central Excise Rules and the instructions contained in Notification No. 198/76 dated 16.6.1976 whereas on the other hand the Adjudicating Authority had decided the issue giving due consideration to the said Rule and Notification in their proper perspective vide his Adjudication Order. Shri Chakraborty further submitted that on receipt of the papers back from the Government of India the case was processed further and ultimately the Collector authorised the said Shri Jeet Ram Kait to file the appeal. Thus any omission of the words that the impugned order is not legal or proper in the authorisation in the instant case is of no consequence. To support his arguments he cited the case of Collector of Central Excise, Madras v. Sundaram Fasteners Ltd. . At one stage he also argued that review and appeal are the one and the same thing in essence and therefore when the review petition was filed by the Collector himself before the Government of India who was the competent authority before the constitution of the Tribunal the subsequent return of the review petition and filing of the appeal before the Tribunal is in essence one and the same thing. To put it differently according to him the filing of the appeal before the Tribunal is a continuation of the proceedings which had already started by way of Review proposal before the inception of the Tribunal. To support his arguments he tried to take the advantage of certain observations made in paras 5, 6 and 7 by the Apex Court in the case of Shankar v. Krishna .
7. We have considered the rival contentions raised by the parties and the case law cited by them. Sub-section (2) of Section 35B of the Central Excises and Salt Act, 1944 which empowers the Collector to authorise any Central Excise Officer to appeal on his behalf to this Tribunal reads as follows
(2) 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 35A, is not legal or proper, direct any Central Excise Officer authorised 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.
The Collector vide his Order dated 20.11.1982 has authorised Shri Jeet Ram Kait under the said Sub-section (2) of Section 35B. The photo-copy of the said authorisation is on record which reads as follows:
OFFICE OF THE COLLECTOR OF CENTRAL EXCISE: CALCUTTA
15/1-STRAND ROAD: CUSTOM HOUSE: CALCUTTA-1
ORDER Dated 20.11.1982
In exercise of the powers conferred upon me under Sub-section (2) of Section 35(B) of the Central Excises and Salt Act, 1944, hereby authorise the undernoted officer of this Collectorate to act on my behalf in the matter of filing appeal/memorandum of cross-objection in respect of case noted herebelow before the Customs, Excise and Gold (Control) Appellate Tribunal, Calcutta/Delhi.
Sd/- B.N. Rangwani, Collector Name of the officer. Designation. Sri Jeet Ram Kait Deputy Collector. Name and address of the Assessee. M/s. K. Manibhai & Co. 21.R.N. Mukherjee Road, Calcutta-700001. Vide Order-in-Appeal No. 570-57l/Cal/82 dated 13.7.1982 passed by the Appellate Collector of Central Excise, Calcutta.
8. From a plain reading of Sub-section (2) of Section 35B as extracted above it is clear that the Collector of Central Excise can direct any Central Excise Officer to file the appeal before this Tribunal on his behalf if he is of opinion that an order passed by the Appellate Collector is not legal or proper. From a plain reading of the authorisation as extracted above it is clear that the said authorisation on the face of it does not disclose the facts to which the Collector applied his mind and the reasons for which he gave his conclusion to file the appeal. But keeping in view of the peculiar facts and circumstances of the instance case that the impugned order was passed before the constitution of this Tribunal and a review petition was filed by the Collector himself in which he after staling the history of the case and the orders of the Assistant Collector and the impugned order had categorically staled in paragraph 5 that the conclusion of the Appellate Collector is not correct and is not in conformity with the relevant rule and notification. The said para reads as follows
5. In my opinion, however, the above conclusion of the Appellate Collector is not correct and is not in conformity with the Rule 11 of C.E. Rules and the instruction contained in Notification No. 198/76 dated 16.6.1976 on the other hand the adjudicating officer decided the issue in his order in original giving due consideration in its proper perspective.
From the photo-copies of the Collector’s file it is also clear that the said proposal was sent back to the Collector by the Government of India for taking the necessary steps under Section 35B. It is also clear that the file was processed and ultimately the Collector authorised Shri Jeet Ram Kait, Deputy Collector to file the appeal on his behalf. Under these circumstances it cannot be said, in the absence of any evidence to the contrary that the Collector of Central Excise did not apply his mind to the facts and circumstances of the case or failure to record expressly his opinion about the legality or propriety of the impugned order in the authorisation is fatal to the department. On the other hand it stands established from the record that the Collector had applied his mind and came to the conclusion that an appeal should be preferred. In this view of the matter we are supported by the decision of this Tribunal rendered in the case of Collector of Central Excise v. Sundaram Fasteners Ltd., supra wherein this Tribunal after noticing two decisions of the Apex Court rendered in the case of Barium Chemicals Ltd. v. Co. Law Board and Rohtas Industries Ltd. v. S.D. Agarwal held that Section 35B(2) of the Central Excises & Salt Act only requires that the Collector should be of opinion that the order of the Appellant Collector was not legal or proper and in that view of the matter the opinion of the Collector would not be open for review by this Tribunal at the preliminary stage. In that case it was further held that failure to disclose grounds of his opinion by the Collector for filing the appeal in his authorisation order is also not fatal for the aforesaid reasons. Thus following the said decisions we hold that the authorisation is valid. The case of Gonterman Peipers (India) Limited v. Additional Secretary to the GOI, supra is distinguishable on the facts of that case. In that case the validity of the review show cause notice was challenged before the Hon’ble Calcutta High Court on the ground that there was no material to show that the order sought to be revised therein was not correct, legal and proper. To examine the validity of the said contention the department was given time to produce the relevant files but the same were not filed in spite of adjournments and the records which were produced do not contain the records relating to the issuance of the said review show cause notice. Besides, in the file produced before the Hon’ble High Court there was nothing to indicate that there was any material for arriving at the satisfaction for initiation of the review proceedings. Under these circumstances the Hon’ble High Court had to hold that the show cause notice was void and illegal and without jurisdiction. This is not the case here. In the instant case as stated above the relevant record such as Review proposal submitted to the Government of India and the action taken upon it etc. are on record. From the said record it stands established that all the papers were produced before the Collector to which he applied his mind and came to the conclusion that the appeal should be preferred. The case of Collector of Central Excise, Calcutta v. Koilite Inds. P. Ltd., supra cited by the respondents is distinguishable on the facts of that case as no authorisation was appended in that case and the appeal was not filed by the department in the prescribed form and also the grounds of appeal were not set out as required under the CEGAT (Procedure) Rules, 1982.
9. In view of the above alternative arguments advanced by the learned JDR that the review petition filed before the Government of India and the appeal are the one and the same thing in essence does not require any consideration.
10. Before we part, it may be stated that at one stage the very authenticity of the photo-copy of the authorisation was also challenged on the ground that the department had not produced the Collector’s file. To which the learned JDR submitted that it is a very old case and since there was bifurcation of the Collectorate into various segments the original file is not traceable.
11. We have considered the submissions and find that the said photo-copies have been produced by the Collector himself who is a responsible officer in the hierarchy of the department. Thus, in the absence of any evidence to the contrary we cannot throw out the said photo-copies of the record including the authorisation as unbelievable.
12. In the result we overule the preliminary objection and hold that the authorisation was valid.
Sd/
G.P. Agarwal
D.C. Mandal, Member (T)
13. I have gone through the foregoing order recorded by Brother Shri Agarwal, Member (J). I am of the view that Section 35B(2) of the Central Excises and Salt Act, 1944 does not cast a legal obligation on the Collector to record the reasons or grounds for which he is of the opinion that the order of the Collector (Appeals) is not proper or legal. What is required by this Section is that the Collector should form an opinion that the order passed by the Appellate Collector under Section 35 of the Act as it stood prior to 11.10.1982 or the Collector (Appeals) under Section 35A of the Act as it stands with effect from 11.10.1982, is not legal or proper and then he should direct any Central Excise Officer authorised by him in this behalf to appeal on his behalf to the Appellate Tribunal against such order. Therefore, if the Collector forms an opinion as required and he directs and authorises a Central Excise Officer to file the appeal then such an authorisation will not become invalid due to absence of the reasons or grounds for which the Collector has formed the opinion. In the present case, in the review proposal sent to the Central Government under Section 36 of the Act as it then existed, the Collector expressed his opinion with reasons why he considered the order of the Appellate Collector illegal, improper and not correct. In the peculiar facts and circumstances of this case, the authorisation would not be invalid because of absence of specific mention of the formation of opinion by Collector if there is an otherwise proper authorisation as required under Section 35B(2). It is required to be considered whether in this case there was a proper authorisation.
14. The Sub-section (2) of Section 35B requires that (i) the Collector shall direct a Central Excise Officer to file an appeal on his behalf to the Tribunal against the order of the Collector (Appeals) and (ii) direct the said authorised officer to file the appeal. The learned DR has submitted photo-copies of the (i) “authorisation under Section 35B(2)”, (ii) review proposal sent to the Additional Secretary (R.A. Unit), Government of India, (iii) letter dated 18.10.1982 of the Ministry of Finance, Deptt. of Revenue to the Collector of Central Excise, Calcutta advising him to take action under Section 35B, (iv) order-in-appeal passed by the Appellate Collector and (v) note sheets pages (1) to (5) of File No. V(3)2/178/C. Cell(appeal)CE/82. Copy of the authorisation has been extracted at para 7 of Brother Shri Agarwal’s order. The “authorisation” is dated 20.11.1982. The date is on the top right hand side of the “authorisation”. Although a xerox copy of the same has been filed, it does not bear the signature of the Collector. Instead of signature of the Collector, the copy indicates as follows:
Sd/-
B.N. Rangwani
Collector
This is the photo-copy of a typed copy of the “authorisation”. The text of the “authorisation” and below that, the name and designation of the officer authorised, viz., Shri Jeet Ram Kait, Deputy Collector arc found to be typed, but the “Name and address of the Assessee” and the “order-in-appeal Number and date” are written at the bottom of the page in manuscript by a subordinate officer. It means that the typed portion of the “authorisation” is a general authorisation in favour of Shri Jeet Ram Kait, Deputy Collector. The name and address of the assessee and the order-in-appeal number and date are added by a subordinate staff in the individual case. This view is fortified by the fact that in the notings at pages (1) to (5) of the Collector’s file, photo-copy of which has been filed before us by the learned D.R., there is no indication that the Collector had signed the authorisation in this case although the notings started from the stage of sending the review proposal to the Additional Secretary (R.A. Unit), Ministry of Finance and the note sheets end with the noting dated 16.12.1987. The Bench wanted to see the file containing the original authorisation of the Collector, if any, in this case. The learned D.R. Shri Chakraborty has stated that the original file is not available as it was a very old case and there was bifurcation of the Collectorate into various segments. I, however, find that “authorisation” dated 20.11.1982 was attested by Superintendent of Central Excise (Technical) on 30.3.1983. It means that the copy of the authorisation which was available in the file exactly represented the photo-copy which has been filed before us. This goes to establish that the Collector did not sign any authorisation in this case and his office has used a “copy of the general authorisation” after adding the name and address of the assessee and the order-in-appeal Number and date at the bottom of the copy of general authorisation. In the circumstances, I hold that there is no proper authorisation in this case as required under Section 35B(2) of the Central Excises and Salt Act, 1944 and in the absence of a valid and proper authorisation the appeal before us is not maintainable under law. A similar proper authorisation the appeal before us is not maintainable under law. A similar view was taken by this Tribunal in Order No. 697/88-C dated 12.9.1988 in Appeal No. E/463/85-C in the case of Collector of Central Excise, Calcutta-II v. Shalimar Paints Ltd.
15. In view of my foregoing findings, I hold that this appeal is not in accordance with law and hence it should be dismissed as not maintainable. I order accordingly.
Sd/-
Dated: 24.1.1989 (D.C. Mandal)
Member (T)
Following with respect the ratio of the earlier decision of the Tribunal in Order No. 697/88-C dated 12.9.1988 as mentioned above, and I agree with Brother Shri Mandal and hold that there is no proper authorisation in this case as required under Section 35B(2) of the Central Excises & Salt Act, 1944 and the appeal, therefore, in this view, is not maintainable in law and is dismissed.
Dt. 2.2.1989 Sd/-
(V.P. Gulati)
Member (T)
Following the majority view, we hold that there was no proper authorisation from the Collector of Central Excise, Calcutta under Section 35B(2) of the Central Excises and Salt Act, 1944 to file these appeals. The appeals, therefore, are not maintainable and the same are dismissed.