1. The Revenue is in appeal against an order of CEGAT which holds thus:
"In the facts and circumstances of the case and after going through the relevant authorisation and note-sheet order, we are of the view that the Collector simply authorised the Superintendent to file an appeal without applying her mind. She should have indicated whether order passed by the authorities below is legal or otherwise. In the absence of such averment as envisaged in Section 35B(2) of CESA and since the authorisation is neither legal nor proper, the appeal is dismissed as not maintainable. Ordered accordingly."
2. The provisions of Section 35B(2) clearly require as a prerequisite to the direction to any Central Excise Officer to file an appeal the formation of the opinion by the Collector that the order against which the appeal is to be filed is "not legal or proper". We asked the learned counsel to show us what the noting was that the Collector had made in this case. It is not before us. Learned counsel referred to Ground 'B' of the memorandum of appeal which states:
"Because the Tribunal has failed to consider that in the instant case, as can be seen from the note-sheet, the subordinate authority has given detailed reasoning for filing appeal and same note was endorsed by the Collector."
We would have seen from the note-sheet if it had been produced before us.
3. Learned counsel for the Revenue referred to the judgment of this Court in CCE v. Berger Paints India Ltd., This was a case where the Collector had endorsed the noting submitted to him which stated that the order proposed to be appealed against was not legal and proper. The judgment does not assist the Revenue, having regard to the fact that it has failed to produce the submission, if any, that the Collector in the present case has endorsed. In the circumstances, the appeal is dismissed. No order as to costs.