- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY O.O.C.J. CENTRAL EXCISE APPLICATION NO.15 OF 2002 ... The Commissioner of Central Excise ...Applicant v/s. India Steel Industries ...Respondent ... Mr.P.S.Jetly with Mr.A.S.Rao for the Applicant. ... CORAM: D.K.DESHMUKH & J.P.DEVADHAR, JJ. DATED: 6TH OCTOBER, 2008 P.C.: This Application was admitted on 28th April, 2005 on the following substantial question of law- "Whether on the facts and in the circumstances of the case the Tribunal was right in law in holding that the authorization granted by the Commissioner under section 35 B is defective inasmuch as the Commissioner had not declared that the impugned order is neither legal nor proper failing to appreciate that no appeal can be filed in the first instance without the impugned order being neither legal nor proper and also without calling for the file and without examining the notings made therein." 2. The appeal filed by the Revenue was rejected by the Tribunal only on the ground that the authorisation order of the Commissioner does not contain the crucial words "not legal and proper". - 2 - The Tribunal had relied upon the judgment of the Apex Court in the case of Collector of Central Excise, Vadodara v/s. Rohit Pulp Paper Mills, 1998 (101) ELT page 5. 3. On perusal of the authorisation order of the Commissioner it is seen that the Commissioner has not recorded his satisfaction that the order of the Commissioner’s (Appeals) is not legal and proper. Neither any office note nor any other material is placed on record to show that before issuing the authorisation the Commissioner had satisfied himself that the order of the Commissioner (Appeals) was not legal and proper. On the basis of the material placed on record it cannot be said that the Tribunal has committed any error which requires to be considered by calling for a statementof the case. 4. In this view of the matter, we see no merits in the application filed by revenue. Accordingly rule is discharged. Application disposed off with no order as to costs. (D.K.DESHMUKH, J.) - 3 - (J.P.DEVADHAR, J.)