Customs, Excise and Gold Tribunal - Mumbai
Commissioner Of C. Ex. vs Choksi Brothers on 14 December, 2000
Equivalent citations: 2001(129)ELT110(TRI-MUMBAI)
ORDER P.G. Chacko, Member (J)
1. This is an appeal filed by the Revenue against the Order-in-Appeal, dated 28-6-1993 of the Collector (Appeals).
2. We have carefully examined the impugned order, grounds of the appeal and all other connected records. We have also heard Shri B.K. Choubey, JDR for the appellant-Revenue and Shri Manoj Sanklecha, ld. advocate for the respondents.
3. The ld. counsel has raised a preliminary objection at the outset. He submits that the authorisation by the jurisdictional Collector for filing this appeal is not proper inasmuch as the words "not legal or proper" do not figure in the text of the authorisation. He submits that any authorisation to file appeal under Section 35B of the Central Excise Act can be given by the proper officer only after satisfying himself that the order sought to be appealed against is not legal or proper. According to him, unless these words are not used in the text of the authorisation, the satisfaction of the proper officer is not borne on record, which according to the ld. counsel is mandatory for purposes of Section 35B(2) of the Act. The ld. counsel has in this connection relied on the decision of the Supreme Court in the case of Collector of Central Excise, Vadodara v. Rohit Pulp Paper Mills - 1998 (101) E.L.T. 5 (S.C.) and the following decisions of the Tribunal:
1. Commissioner of Central Excise v. Tough Wood - 1999 (106) E.L.T. 85 (Tribunal).
2. Collector of Central Excise, Jaipur v. Shree Ram Rayons - 1999 (106) E.L.T. 225 (Tribunal).
3. Commissioner of Cen. Ex. & Customs, Surat v. Gupta Silk Mills -2000 (121) E.L.T. 804 (Tribunal).
4. Commissioner of Cen. Excise, Bombay-I v. Lloyds Steel Inds. Ltd. -1999 (112) E.L.T. 1034 (Tribunal).
4. The ld. DR, Shri Choubey on the other hand, submits that the very fact of authorisation by the Collector as evidenced by the text of the authorisation available on record is sufficient for purposes of Sub-section (2) of Section 35B, in support of which he relies on the Tribunal's decision in the case of Commissioner of Central Excise v. NELCO Ltd. - 2000 (37) RLT 611 (CEGAT). The ld. JDR also relied on the Supreme Court decision in the case of Collector of Cen. Excise v. Berger Paints India Ltd. - 1990 (47) E.L.T. 210 (S.C).
5. We have carefully considered the rival submissions and arguments on the preliminary objection. The text of the authorisation by the ld. Collector available on record has been perused. It purports to authorise the Asstt. Commissioner to prefer the present appeal in pursuance of the provisions of Section 35B against the order of the Collector (Appeals). The words "not legal or proper" as used under Sub-section (2) of Section 35B do not figure in this text of authorisation. The controversy before us revolves round this aspect. On a perusal of the decision cited by the ld. counsel, we note that in all the 4 cases considered by the Tribunal, a view was taken to the effect that, in the absence of appropriate noting by the authorising officer in his file, any authorisation by him for filing appeal under Section 35B(2) without expressly using the words "not legal or proper" in the text of authorisation would not be considered to indicate application of mind by the said officer to the order sought to be appealed against. We, however, note that it was almost in a similar factual situation, the Hon'ble Supreme Court rendered its decision in the case of Rohit Pulp Paper Mills (supra) wherein the Apex Court held that formation of opinion by the Collector that the order appealed against was not legal or proper was a pre-requisite under Section 35B. It is pertinent to note that this decision was rendered in a situation in which no note sheet of the Collector containing any entry of such opinion was produced before the Court. We further note that the Court decided the above case after considering its earlier judgment in the case of Berger Paints India Ltd. It is noteworthy that the decision in Berger Paints India Ltd. was only held to be inapposite to the Revenue's case in Rohit Pulp Paper Mills (supra). In other words, ruling of the Apex Court in Berger Paints India Ltd. was left intact. It was this ruling which has been relied on by the Revenue before us in the instant case. We further note that in the case of Nelco Ltd. (supra) the Tribunal, in its decision, considered the Supreme Court's decision in Rohit Pulp Paper Mills and held that an authorisation by the Collector was not to be considered as improper merely because it did not use the words 'not legal or proper' in the text thereof and that the fact of authorisation by itself was sufficient indication that the Collector considered the impugned order as not legal or proper and is one which required to be appealed against. We have perused the Tribunal's order in Nelco Ltd. (supra), and we are inclined to follow the same. In the instant case, we further note that the Revenue appeal was filed as early as in 1993 and the records show that an objection like the one taken by the ld. advocate before us was never taken by, or on behalf of, the respondents at any stage of the proceedings before. The records of the proceedings clearly disclose that, at least on one of the occasions, the authorisation of the Collector was considered by the Bench in the presence of both the sides. Nevertheless, no objection was raised at that time. As per the available records, it is today for the first time that the respondents have raised such an objection. Apart from all the above consideration, we hold that an appeal filed as early as in 1993 which has come up for consideration before the Bench in the presence of both the sides on several occasions and has ultimately arisen for final hearing today cannot be thrown out at the threshold on the ground now raised by the ld. counsel. Latches of the respondents would defeat the objection now raised by them before us. We, therefore, reject the preliminary objection raised by the ld. counsel and proceed to consider the matter on merits.
6. The short issue before us is whether the revised price furnished by the assessees to the Department in their price list would take effect on the date of filing thereof as claimed by the assessees or on the date of the approval thereof by the Departmental officers as claimed by the Revenue. The respondents had filed the price list on 1-11-1991 making a downward revision of the price. This fact is not disputed. The price list was approved by the Asstt. Collector on 9-3-1992, which, again, is not disputed. The department wanted to charge duty on the basis of the pre-revised price from 1-11-1991 to 9-3-1992, whereas, the assessees resisted the department's action by contending that the revised price took effect on the very date of filing of the price list and therefore, they were not liable to pay higher duty. The Asstt. Collector upheld the stand of the department. In the appeal filed by the assessees against the Asstt. Collector's order, the Collector (Appeals) set aside the order of the Asstt. Collector and held that the revised price had taken effect as early as on 1-11-1991 (the date of filing of the price list). The Collector (Appeals) relied on the Apex Court decision in Samrat International v. Collector of Central Excise - 1992 (58) E.L.T. 561 and also the Tribunal's decision in the case of IDPL v Collector of Central Excise -1987 (27) E.L.T. 356 and, further, on Board's circular dated 26-8-1986.
7. The ld. DR has reiterated the findings and observations of the Asstt. Collector as recorded in the Order-in-Original and also the grounds of appeal. The ld. counsel for the respondents has defended the impugned order on the basis of the very case law cited in the order.
8. We have carefully examined the matter. The issue is one which has been settled long ago by the decision relied on by the ld. Collector (Appeals). The grounds of appeal do not hold ground in the light of the said decision. The assessees were entitled to clear their goods at the revised price with effect from 1-11-1991 as per the decision relied on by the ld. Collector (Appeals). The Revenue appeal is without merits and the same is rejected.