The vital issue involved in this case was the exercise of power by the collector as to whether an appeal should be filed in CEGAT or not against the departmental adjudication which has rejected the case of the department. For this purpose under Section 35 B(2) the collector has to form an opinion that the adjudication order is ``not legal or proper''. From May 26, 1995 this power is with the commissioner. Hence the collector/commissioner becomes the key official who sits on behalf of the public as a guardian of excise justice. Two critical issues of public revenue and the rule oflaw are involved: One whether the collector/commissioner exercised this power and second the manner of its exercise. Public revenue can be honestly given up by deciding that no appeal must be filed against the departmental adjudication. Or it can be dishonestly given up thanks to good management by the assessee.

The Rohit Pulp Paper Mills case raised the issue of the role of the Supreme Court because the central excise authorities refused to produce before the apex court the note sheet which they stated in their statutory appeal memorandum as having been endorsed by the Collector to permit an appeal to CEGAT. Ground B of the memorandum of appeal against the September 19, 1996 order of CEGAT stated, "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 the same note was endorsed by the collector." Despite this written submission there was no note sheet annexed to the statutory appealbefore the apex court.

Accordingly Justices S P Bharuch and B N Kripal asked for the note sheet to see for themselves whether CEGAT was right in dismissing the appeal of the central excise authorities on the ground that the collector did not apply her mind in authorising an appeal against the departmental adjudication.However, the central excise authority and its counsel from the Union law ministry appearing before the apex court failed to produce the note sheet. This was despite the fact that the CEGAT order stated that the bench had gone through the relevant authorisation and note sheet order of the collector directing the superintendent to file an appeal before CEGAT. Hence it was obvious that the note sheet did exist but was not being produced before the apex court.

The apex court simply held that the note sheet had not been produced and hence dismissed the appeal of the collector central excise against the CEGAT order. But a simple dismissal buried two crucial questions: Why was the note sheet notproduced by the Union finance ministry and why did the Union law ministry not demand it from the Union finance ministry when the entire case was dependent on its production? A simple way for the apex court to cut through this was by directing a notice to the Central Board of Excise and Customs and hence ensuring excise justice. If governmental authorities can without an existing document, crucial to the decision of a case, from the apex court then there is little hope for justice in public revenue. The message that this sends to top-level excise officials is rather ominous for the public interest.

This is so because the law requiring a collector/commissioner to give his opinion that the departmental adjudication order is not legal or proper and hence must be appealed to CEGAT can be simply turned on its head by the following steps: Pass a wrong order, file an appeal which is bound to be dismissed; file a further appeal to the Supreme Court whose dismissal is ensured by not presenting the note sheet of theorder that was produced before CEGAT. On paper, all the formal steps of protecting public revenue have been taken by filing appeal after appeal. In reality it has been ensured that at the further public expense of state litigation the existing crucial documents are not produced to defeat the appeals. The Union finance ministry neatly escapes and a modus operandi stands legally sanctioned.