1. Before the arguments on the merits of appeal commenced, Shri Khaitan raised a preliminary objection that the appeal filed by the appellant on 9-5-83 was not a valid appeal as it had been presented without compliance with the provisions contained in Sub-section (1) of section 35E of the Central Excises and Salt Act, 1944 (for short the Act). Shri Khaitan argued that on 9-5-83 the Central Board of Excise & Customs (hereinafter called Board) had not passed an order as required under subsection (J) of section 35E and therefore there was no compliance with subsection (4) of this Section. Such an appeal was therefore incompetent.
2. Shri Khader for the appellant brought it to our notice that the appellant had with respect to the same order and matter, filed another appeal on 3-11-1983. This appeal has been given the same number by the Registry. Shri Khadar explained that the second appeal was filed on 3-11-1983 by way of abundant caution Shri Khader invited our attention to a letter dated 8-4-1983 bearing No. 145/10/83-CX, IV, Government of India, Ministry of Finance Department of Revenue, addressed to the Collector of Central Excise, Calcutta. It was submitted that through an oversight this letter was addressed from Government of India although on file a Member of the Board had passed the necessary order directing the Collector of Central Excise, Calcutta, to prefer the appeal. It was further pointed out that non-mentioning of the section of the Act was through an oversight and it was purely a procedural lapse. In the context of the matter as a whole, he submitted, that the letter dated 8-4-1983 could be considered a proper direction within the requirement of section 35E of the Act. Shri Khader also argued that the Tribunal was not concerned so much with the letter of authority ; if the grounds of appeal made a mention of and order under section 35E having been passed that was sufficient. He submitted that the provision contained in Sub-section 1 and (4) of Section 35E of the Act were directory and not mandatory and in any case there was substantial compliance with the requirement of the section.
3. We do not agree with Shri Khader's contention that a mere mention of an order under section 35E(1) having been passed should satisfy the Tribunal and that Tribunal could not enquire whether in fact such an order has been passed by the Board. We also do not agree with Shri Khader that the requirement of the Board passing an order under Sub-section (1) of Section 35E of the Act or an appeal being filed to the Appellate Tribunal in pursuance of the order as provided for in Sub-section (4) are merely directory and an empty formality. A reading of the two sub-sections leaves no doubt that the compliance with the requirement of these two sub-sections are mandatory. They are not merely directory or empty formalities. Sub-section (1) of Section 35E requires a conscious decision of the Board after application of mind.
An appeal under section (4) is competent only when it is filed in pursuance of an order passed under Sub-section (1). In the instant case copy of memo dated April 1983 from Government of India, Ministry of Finance, Department of Revenue addressed to Collector, Central Excise, Calcutta cannot be said to be an order passed by the Board as required under Sub-section (1) It does not even direct the Collector to apply to the Appellate Tribunal nor does it specify the points for determination as required under sub-section. It is only a communication from the Government of India. When a copy of the order has been filed along with the memo of appeal, the Tribunal cannot overlook it and ignore the fact that it is not an order passed by the Board but only communication from Government of India. Therefore, when the appellant filed memo of appeal on 9-5-83 there was no compliance with the requirement of Sub-sections (1) and (4) of Section 35E of the Act. The appeal filed on 9-5-83 was thus incompetent and not maintainable.
4. The very fact that the appellant has filed another appeal on 3-11-1983 with respect to the same order and matter indicates that the appellant himself has doubts or reservation about maintainability of the appeal filed on 9-5-83.
5. Besides, holding the appeal filed by the appellant on 9-5-83 as incompetent would not affect the appellant in any way. The time for filing the appeal has not expired and the appellant has filed another appeal on 3-11-83, presumably after complying with the requirement of section 35E.6. As a result of foregoing discussion we hold that appeal dated 9.5.83 was incompetent and was not maintainable for non-compliance with the provisions contained in Sub-sections (1) and (4) of Section 35E of the Act. It is therefore, filed as infrectuous. Notice is taken of the appeal filed subsequently on 3-11-1983. This appeal is to be treated as newly filed and should be assigned a new number by the Registry. Shri Khakan, learned Counsel for the Respondent orally informed that he had taken notice of this appeal filed on 3-11-1983. Both Shri Khader for the Appellant and Shri Khaitan for the Respondents requested that the matter should be posted for early hearing as huge sum of money is involved. Accepting this request we direct that the matter be listed for hearing on 11-1-1984 and shall be number one on the regular list.