ORDER
Shri G.A. Brahma Deva
1. This is an appeal filed by the Department. Since the authorization is not in proper form as envisaged under Section 35 B (2) of the Central Excise Act, on last occasion the DR was directed to place note-sheet order to ascertain whether there was any application of mind by the Collector in giving authorization. No such note-sheet has been placed on our record.
2. Section 35 B (2) of the Central Excise Act is as under:
The (Commissioner of Central Excise) may, if he is of opinion that an order passed by the Appellate (Commissioner of Central Excise) under section 35, as it stood immediately before the appointed day, or the (Commissioner (Appeals) under Section 35 A, 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.”
3. As can be seen from the wordings of the Section 35 (B) 2, the collector is required to give an authorization in a proper form stating the words whether order passed by the authority below is legal or otherwise. Such wordings are not there in the Authorisation.
4. Tribunal has been consistently taking the view that Appeal is not maintainable if the authorization is not in proper form in as much as it does not contain whether order passed by the authority below is legal or otherwise. The view taken by the Tribunal has been upheld by the Supreme Court in the case of CCE Vs Rohit Pulp Paper Mills reported in 1998(101) ELT (5)
5. In the facts and circumstances of the case and following the consistent view of the Tribunal particularly in view of the fact that the decision of the Tribunal was upheld by the Supreme Court referred to above, we do not find any substance in the appeal filed by the Department. Accordingly, appeal is hereby rejected as not maintainable.
(Pronounced and dictated in open court)