ORDER
K. Sankararaman, Member (T)
1. A preliminary objection was raised by Shri J.S. Agarwal, learned Counsel for the respondent that the authorisation in this appeal filed by Revenue should have been issued by the Central Board of Excise & Customs and not by the Collector himself. He pointed out that even it is felt that the Collector could issue authorisation he could only issue in favour of another officer whereas in this case he has himself filed the appeal which the learned Counsel contended was not proper. This preliminary objection is dismissed. It is clear that the appeal challenges an order-in-appeal passed by the Collector (Appeals) against which the department does have remedy before the Tribunal in terms of Section 35B(2) of the Central Excise Act. The authorisation by the Board which the learned Counsel referred to will relate to appeals filed against the orders of the Collectors after review by the Board for their legality and propriety. This being not such an appeal, the said requirement would not apply and the appeal has been filed under proper authority. Further, we hold that the Collector could very well file the appeal himself instead of authorising any subordinate officer.
3. We have heard both sides and perused the record. We find that the appeal is directed against an order-in-appeal passed by the Collector (Appeals) where he has allowed the appeal filed by the present respondent and set aside the order of the Assistant Collector. By that said order the Assistant Collector had rejected the refund claim filed by the respondent on the ground that the act of their having passed on the alleged excess differential amount to their customer had not been substantiated. The Assistant Collector had given the respondent sufficient opportunity to submit the relevant documents in this regard and as they failed to do so, he had rejected the refund claim. There was no material placed before the Collector (Appeals) to overthrow this factual finding by the Assistant Collector. The finding of the Collector (Appeals) is only that after having carefully gone through the impugned order and the memo of appeal, he found the arguments of the appellant to be forceful and justified. There is no finding based on any fact placed before him to justify such a decision. In the circumstances, the appeal filed by the department deserves to be allowed. We order accordingly and set aside the order-in-appeal. The order-in-original passed by the Assistant Collector is restored.
4. Appeal is allowed as above.