ORDER
Harish Chander, President
1. Deputy Collector of Central Excise, Calcutta has filed an appeal being aggrieved from the order passed by the Collector of Central Excise (Appeals), Calcutta. The said appeal was received in the Calcutta Registry on 17th February, 1983. Mrs. C.G. Lal, the learned SDR at the outset of the hearing made a prayer that the cause title of the appeal should be corrected as Collector of Central Excise, Calcutta v. Indian Card Board Industries Ltd.
2. Shri N.C. Jain, the learned advocate does not object to the correction of the cause title.
3. After hearing both the sides, we order that the cause title should be read as under :-
Collector of Central Excise, Calcutta
v.
Indian Card Board Industries Ltd.
4. Mrs. Lal, the learned SDR pleaded that at the time of filing of the appeal, an authorisation in terms of the provisions of Section 35B(2) of the Central Excises and Salt Act, 1944 must have been issued, but due to bifurcation of the Collectorates the same is not traceable. She has also filed a fax copy of the authorisation issued by the Present Collector, Sunipa Basu, Collector-II Central Excise, Calcutta. She pleaded that this authorisation may be treated as an authorisation for the filing of the appeal.
5. Shri N.C. Jain, the learned advocate who has appeared on behalf of the respondent pleaded that repeated opportunities were given to the appellant to produce the authorisation. More than seven months have passed and till date no authorisation for the filing of the appeal has been produced and as such, no appeal could have been filed in terms of Section 35B(2) of the Central Excises and Salt Act, 1944. He argued that the latter authorisation filed by the Collector shall not ratify the original defect. In support of his argument, he relied on a decision of the Tribunal in the case of Collector of Central Excise Shanker Sugar Mills reported in 1989 (42) E.L.T. 726 where the Tribunal had held that later authorisation will not ratify the original defect. He pleaded for the rejection of the appeal.
6. We have heard both the sides and have gone through the facts and circumstances of the case.
7. We have perused the appeal file. There is no authorisation in the file in terms of Section 35B(2) of the Central Excises and Salt Act, 1944. Section 35B(2) of the Central Excises and Salt Act, 1944 is reproduced below :-
“35B(2) Appeals to the Appellate Tribunal :-
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.”
A perusal of the same shows that this provision has been incorporated in the statute to avoid frivolous litigation and before the filing of the appeal, the Collector should apply his mind whether it is a fit case for the filing of the appeal or not. In the matter before us, there is no authorisation under Section 35B(2) of the Central Excises and Salt Act, 1944. The authorisation which has been produced by Mrs. Lal, the learned SDR by the present Collector for the proper appreciation of facts is reproduced below :-
“AUTHORISATION UNDER SECTION 35B(2) OF THE CENTRAL EXCISES AND SALT ACT, 1944.
I hereby authorise the Dy. Collector of Central Excise/Assistant Collector of Central Excise to file appeal against O.A. Nos. 585-586-Cal/82 dated 9-8-1992 relating to Deputy Collector v. Indian Card Board Industries, in the Customs and Central Excise and Gold Control Appellate Tribunal, New Delhi.
Sd/-
(Sunipa Basu)
Collector II, Central Excise,
Calcutta.”
Shri Jain, the learned advocate had cited a decision of the Tribunal in the case of Collector of Central Excise v. Shanker Sugar Mills reported in 1989 (42) E.L.T. 726. Accordingly, in view of the above discussion, we hold that since there was no authorisation in terms of provisions of Section 35B(2) of the Central Excises and Salt Act, 1944, the appeal filed by the Deputy Collector is incompetent as having been filed by a person who was not competent to file the same. With these observations, the appeal is dismissed. Cross-objection is also disposed of.