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2013 (12) TMI 287 - HC - Central ExciseScope of Section 35-B (2) of the Central Excise Act – Appeal could be dismissed or not – Filing of counter Affidavit – Held that:- The opinion of the Board of Commissioner of the Central Excise under Section 35B is not justiceable on merits in Court - The opinion to be formed by the Board of Commissioners is a prima facie opinion and is not conclusive in nature which may be subject to challenge by the assessee on merits - If such an order is subjected to judicial review, it may give rise to taking ground to be agitated in almost every case and will cause unnecessary delay in disposal of the appeals under Section 35B of the Act - the object and purpose of enacting Section 35-B (2) of the Act is to avoid filing of frivolous and unnecessarily appeals, and to safeguard the interest of the revenue. Relying upon Collector Vs. of Central Excise, Vadodara Vs. Rohit Pulp Paper Mills [1998 (4) TMI 138 - SUPREME COURT OF INDIA] - The record clearly demonstrates that the Committee of Commissioners have signed on the note, which contains the reasons, and the proposed order giving grounds on which the appeal has to be filed - the Committee of Commissioners have applied their mind before authorizing to file the appeal - Granting time to the respondent to file a counter affidavit, especially when we perused the original records cannot be allowed – Decided in favour of Appellant.
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