ORDER
S.L. Peeran, Member (J)
1. This is a Revenue appeal against Order-in-Appeal No. 114/89, dated 9-11-1989 relating to classification of wooden doors, window frames and shutters under Heading 4410.90. Revenue seeks reclassification of the goods under Chapter Heading 44.05.
2. A preliminary objection was raised by the learned Counsel appearing for the respondents on the ground that the authorisation does not indicate that the Commissioner (Appeals) had examined the form of opinion in terms of Section 35B (2) of Central Excise Act to say that the impugned order is not legal and proper. She had submitted that pre-requisite condition of the said section in terms of the opinion by the Collector and such opinion should also be found reflected in the note sheet and the file of the Collector, which was not produced along with the authorisation. She sought for dismissal of appeal in view of Supreme Court ruling on this point rendered in the case of CCE v. Rohit Pulp Paper Mills as reported in 1998 (101) E.L.T. 5 (S.C.) in view of the submissions made the Bench had directed the learned DR to call for the records so that the Bench could see as to whether the Commissioner had applied his mind and give his opinion that the impugned order-in-appeal is not legal or proper in terms of the said provision of law.
3. Learned DR placed before us the case file. We have examined. We notice that the Superintendent had placed the file before the Commissioner with the noting that “in view of Collector’s orders in the Review sheet a fresh authorisation is put up for approval”. That has been initialled by the Collector on 22-1-1990 and also signed the authorisation which was placed before him. The authorisation does not indicate that the Order is not legal or proper. There is no review sheet in the file to indicate that the order had been read by the Collector and had expressed his opinion that the said order is not legal or proper. In the absence of this Commissioner’s application of mind and the same not coming forthwith from reading the case records, we are of the considered opinion that the judgment of the Hon’ble Supreme Court would directly apply to this case and the appeal is liable to be rejected on this ground. Hence ordered accordingly.