ORDER
G.A. Brahma Deva, Member (J)
1. This is an appeal filed by the Revenue against the Order-in-appeal dated 5-9-1986 passed by the Collector of Central Excise (Appeals), Bombay.
2. The appeal was posted for regular hearing on 3-7-1996 and the respondents remained absent in spite of the fact that notice of hearing for today has been issued to them well in time. On going through the issue involved in this case and on perusal of the record, we find that the matter can be disposed of in the absence of the respondents.
3. Shri M. Haja Mohideen, learned JDR submitted that department has got strong case in view of the fact that date of clearance is relevant for date of payment and in the instant case, the respondents have taken proforma credit and the Collector (Appeals) erred in taking the date of proforma credit as relevant date for the purpose of payment of appropriate rate of duty. On going through the impugned order, we find that the respondents have also taken a plea that demand was barred by time inasmuch as show cause notice was issued on 3-2-1984 for the credit taken on 4-5-1983. In this context, Shri M. Haja Mohideen submitted that date of clearance is relevant date and, accordingly, demand was well in time but he is unable to show the date of clearance of goods in the instant case.
4. On perusal of the record, we find that authorisation issued by the Collector of Central Excise, Vadodara is not in proper form. As per Section 35B(2) of the Central Excises and Salt Act, the Collector of Central Excise may, if he is of the opinion, that order passed by the Appellate Collector of Central Excise under Section 35B, 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 to appeal on his behalf to the Appellate Tribunal against such order. In the authorisation placed before us, the Collector simply authorised the Superintendent to file an appeal without applying his mind. He/she should have indicated whether order passed by the authority below is legal or otherwise before filing the appeal. In the absence of such averment as envisaged in Section 35B(2) of the Central Excises and Salt Act and since the authorisation is neither legal nor proper, we are dismissing the appeal on this ground only without going into the merits of the case. Accordingly, the appeal filed by the department is hereby dismissed as not maintainable. Ordered accordingly.