TMI Blog2008 (5) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... oseph Vaz, Addl. CGSC, for the Petitioner. [Judgment (Oral)]. - The Customs Excise Gold (Control) Appellate Tribunal, Western Revision (sic) (Regional) Bench at Mumbai has dismissed an appeal solely on the ground that the Commissioner of Customs and Central Excise, Goa has failed to use the words 'not legal or proper' used in Section 35B(2) of the Central Excises and Salt Act which regulates the filing of appeals. 2. The Commissioner (Appeals), Mumbai allowed Modvat credit to the respondent. The Commissioner Customs Central Excise, Goa perused the order and found that the Commissioner (Appeals) had allowed Modvat credit on certain items which were not included in the list of capital goods described in the explanation below Rule 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bunal. What the section requires the Commissioner of Appeal (sic) to do is to apply his mind to the order and if he is of opinion that the order is not legal or proper, to direct any Central Excise Officer to file an appeal. According to us the purpose of the provision is absolutely clear and the purpose is to require the Commissioner of appeal (sic) to form an opinion that the order is not legal or proper and only thereupon to direct the filing of such an appeal. Such opinion may be expressed in words which are not used by the Statute itself as has been done in this case. Here, the Commissioner of appeals (sic) formed an opinion that the order was 'bad in law' and, therefore, directed an appeal to be filed. The Tribunal seems to have insis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Supreme Court held that the formation of the opinion by the Collector that the order appealed against 'is not legal or proper' is a pre-requisite. In that case, their Lordships observed that the authorities had failed to produce any noting by the Collector to the effect that the order proposed to be appealed was not legal and proper. In the circumstances, their Lordships upheld the order dismissing the appeal as not maintainable since the authorisation was not legal or proper and was made without applying the mind. The circumstances of the case before us are different. The order directing the appeal to be filed clearly discloses the reasons why the Commissioner formed an opinion that an appeal should be filed. Merely because he said that ..... X X X X Extracts X X X X X X X X Extracts X X X X
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