Judgment:
1. This appeal is against the order-in-appeal dated 18-10-1982 of the Collector (Appeals), Calcutta under which he allowed the appeal preferred by the respondents M/s. Brookhill Ceramics Pvt. Ltd. against the order dated 11-11-1980 of the Assistant Collector. In this appeal the appellant is described as Deputy Collector (I), Central Excise, Calcutta. The appeal has been signed and verified by the Deputy Collector. The respondents who had sent a memorandum of cross objections have, subsequently, sent written representations dated 26-9-1987. Therein they had pointed out that the appeal is liable to fail on the ground that no copy of the direction or authorisation, if any, of the Collector, for the appeal being filed by the Deputy Collector on his behalf, has been filed. The respondents have not appeared in person.
2. We have heard Shri K.C. Sachar for the appellants and perused the records.
3. Since, as pointed out by the respondents, no copy of the authorisation (as required order Section 35-B(2) of the Central Excises and Salt Act) had been filed whereunder the Deputy Collector had been directed or authorised by the Collector to file the appeal, the Bench had directed that the authorisation, if available on the file of the Collector, maybe produced. In accordance with the said direction the representative for the Department had filed a typed copy of the authorisation dated 20-11-1982. Under the directions of the Bench a photo-copy thereof was also filed.
4. Since, on a perusal of the said photo-copy, it was felt by the Bench that a perusal of the relevant file leading to the authorisation would also be necessary, time was granted for production of the said file.
Till date the said file had not been produced for our perusal. What has been produced is only the Assistant Collector's file.
5. The reason why we felt that a perusal of the Original file of the Collector would ' be required is that the photostate copy of the authorisation raised a doubt that a general authorisation, undated, had been issued by the Collector authorising the Deputy Collector to file appeals in suitable cases and that, subsequently, as and when occasions arose, as it arose in the present instance, the authorisation was utilised filing up, beneath the authorisation, particulars of the concerned case in manuscript and dating it at that stage. The reason why such a doubt arose was not merely the manner in which the authorisation had been prepared but also the words used in the authorisation. We are attaching a photostat copy (of the photostat of the authorisation filed before us) for purposes of convenient reference. As may be seen therefrom the authorisation in the typed portion read that the authorisation was to be in the matter of filing an appeal/memorandum of cross-objection in respect of cases noted below before the Customs, Excise and Gold (Control) Appellate Tribunal, Calcutta/Delhi. It was the manner in which the authorisation had been worded that raised a doubt that the authorisation had been obtained in general without reference to any particular case since the authorisation referred to the need for filing either an appeal or a cross-objection before the Tribunal either at Delhi or at Calcutta. If the authorisation had been specially prepared for the purposes of the present case, it could not have been worded in the said manner. As earlier mentioned, the operative part of the authorisation was in typescript, including the name and designation of the person authorised, but the relevant particulars of the proceedings, with reference to which the appeal/cross-objection was to be filed, was entered in manuscript.
It was for these reasons that the Bench felt it necessary that a perusal of the original file would be desirable so that we may be sure that the actual approval of the Collector with reference to the instant matter had been obtained and, thereafter, the general form filled up suitably on the instructions of the Collector. Unfortunately the file has not been produced for our perusal.
5. In the circumstances, we are of the view that, for the reasons stated above, it is not shown that the Collector had bestowed his mind on the need for filing an appeal against the impugned order dated 18-10-1982 and that the appeal was then filed by the Deputy Collector under a specific authorisation to do so. We, therefore, hold that the appeal (signed and verified by the Deputy Collector) was not competent in the absence of an authorisation in favour of the Deputy Collector, under Section 3S-B(2) as would have entitled bun to file the appeal.
Accordingly, we dismiss this appeal as incompetent.
In exercise of the powers conferred upon me under Sub-section (2) of Section 35(B) of thee Central Excises and Salt, 1944,1 hereby authorise the under noted officer of this Collectorate to act on my behalf in the matter of filing appeal/memorandum of cross-objection in respect of case noted here below before the Customs, Excise and Gold (Control) Appellate Tribunal, Calcutta/Delhi.Name of the Officer, Designation,Sri T. Tochhawng, Deputy Collector.
Name and Address of the Assessee M/s. Brookhill Ceramics Pvt. Ltd. B.T.Road Panihati, 24 Parganas.
Vide Order in Appeal No. 969/Cal/82, dated 18-10-1982 passed by the Collec-toror (Appeals), Central Excise, Calcutta.