Customs, Excise and Gold Tribunal - Delhi
Bengal Industrial Gases (Bihar) Ltd. vs Collector Of Central Excise on 21 July, 1987
Equivalent citations: 1987(14)ECC22, 1987(13)ECR1063(TRI.-DELHI), 1987(31)ELT790(TRI-DEL)
ORDER V.P. Gulati, Member (T)
1. The Reference Application has been filed by the appellants for reference of the points of law as set cut in the application arising out of the interim order of the Tribunal passed in Appeal No. E/1688/85-C.
2. Brief facts of the case are that the appellants are the manufacturers of gases. The Additional Collector of Central Excise, Patna vide his order No. 60/MP/83 dated the 31st day of December, 1983 issued under C.No. V.(14HXl5)/81/2378 dated the 27th day of March, 1984 confirmed the demand of Rs. 62,874/- under Section 11A of Central Excises and Salt Act, 1944 read with rule 9(2) of the Central Excise Rules, 1944. He also imposed a penalty of Rs. 5,000/- on the appellant under Section 173Q of the Central Excise Rules, 1944. Being aggrieved from the said order of the Additional Collector of Central Excise, Patna, the appellant filed an appeal before the Collector of Central Excise (Appeals), but the said appeal was returned to the appellant for filing before the Tribunal. Simultaneously, the appellant also filed an appeal before the CEGAT, R.K. Puram, New Delhi. The same was registered with the Delhi Registry vide Appeal No. ED(SB)1141/84-C. The said appeal was received by the Delhi Registry of the Tribunal on the 15th day of June, 1984. The appeal filed by the appellant to the Collector (Appeals), Central Excise, Calcutta on 28th day of June, 1984 was received back on the 24th day of July, 1984 and the appellant filed a Writ before the Hon'ble Calcutta High Court on the 18th day of September, 1984 and the Hon'ble Calcutta High Court had passed an order, which appears on page 31 of the Memorandum of Appeal, captioned as Annexure `D'. The same is reproduced as under :-
"After hearing the Learned Advocate for the petitioner and Mr. Banerjee for the Respondents this Writ petition is disposed of by the following order :-
"Upon the petitioner's withdrawing the appeal before the-Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi and furnishing proof of such withdrawal, it will be permitted by the Collector of Central Excise (Appeals), Calcutta to refile the appeal before him within three weeks from this date and in that event the Collector of Central Excise (Appeals), Calcutta shall decide the question of jurisdiction to hear the appeal after giving the petitioner an opportunity of being heard and pass a reasoned order on that question.
The extra demand of duty and penalty shall not be enforced for four weeks from this date and thereafter an order in this matter be made by the appellate authority.
Plain copy countersigned by the A.R. (Ct.) be given to the Advocates of the parties.
Sd/-
Amitabha Dutta Judge".
In response to the Hon'ble Calcutta High Court's instructions, the appellant, filed an application before the CEGAT, R.K. Puram, New Delhi for withdrawal of Appeal No. ED(SB)1141/84-C and necessary permission for the withdrawal of the appeal was granted by Special Bench of the CEGAT vide Order No. 745/84-C dated the 11th day of October, 1984. As per directions of Hon'ble High Court, the appellant filed another appeal before the Collector (Appeals) Central Excise, Calcutta vide petition dated the 9th day of October, 1984. The said appeal was returned to the appellant by the Collector (Appeals) Central Excise, Calcutta vide Order No. 57/BR/84 dated the 25th day of October, 1984 with a direction to file the appeal to the Appellate Tribunal keeping in view the judgment of the Larger Bench of the CEGAT in the case of S. Kumar and Ors. v. Collector of Central Excise and Ors. reported in 1983 ELT 1057. After the return of the appeal, the appellant filed another writ in the Hon'ble Calcutta High Court and the Hon'ble Calcutta High Court vide order dated the 15th day of January, 1985 directed the appellant to file the appeal within three weeks from 15th day of January, 1985, and further directed the CEGAT, Calcutta Bench to decide the issue about the maintainability of the appeal, before the tribunal within one month from the date of the presentation of the appeal.
3. East Regional Bench of the Tribunal has held in their order that the Additional Collector of Central Excise is not lower in rank to the Collector of Central Excise for the purposes of appeal to be filed before the Tribunal under Section 35C of the Central Excises and Salt Act, 1944, and that the term Collector includes Additional Collector, both under the Excise Act as well as the Excise Rules, and consequently, appeal against an order of Additional Collector shall lie to the Appellate Tribunal and not to the Collector (Appeals). In their decisions the Tribunal has also held that as the case involved the question of rate of duty, the matter fell within jurisdiction of the Special Bench and transferred the case to the Special Bench of the CEGAT, New Delhi. The applicants have raised the following questions of law in the Reference Application and have pleaded for drawing up the statement of the case under Section 35G of the Central Excises and Salt Act, 1944 for reference to the High Court:
"1. Whether the expression "a Central Excise Officer lower in rank than a Collector of Central Excise" appearing in Section 35 of the Central Excises and Salt Act includes an Additional Collector of Central Excise?
2. Whether an appeal against the order of the Additional Collector of Central Excise lies to the Collector (Appeals) under Section 35 of the Central Excises and Salt Act or to the Appellate Tribunal under Section 35B?
3. Whether the Bench of the Tribunal can decide the maintainability of the appeal even after holding that the appeal does not fall in its jurisdiction but falls in jurisdiction of the other Bench?
4. Whether the Calcutta Bench of the CEGAT had the jurisdiction to transfer the appeal to the Special Bench of CEGAT at New Delhi?
5. Whether the Calcutta Bench in question composed of only two Members had the judicial. independence and competence to decide the maintainability of the appeal on the face of contrary judgment of the Five Members Larger Bench decision of the Appellate Tribunal reported in 1983 ELT 1057?
6. Whether the Calcutta Bench of the Tribunal had the jurisdiction and competence to bypass the High Court's direction for deciding the issue after considering the decisions reported in 1983 ELT 1964 and 1983 ELT 645, and whether such a decision is valid?
4. The learned counsel for the appellants, Shri Jain, read out Section 35G of the Central Excises and Salt Act, 1944 and stated that inasmuch as the Tribunal had passed orders in terms of Section 35C, Reference Application on the preliminary point raised was entertainable and statement of the case could be drawn up for reference to the High Court in terms of Section 35G. He pleaded that there was nothing in the law which requires the reference of the case to the High Court only after the final disposal of the appeal. He stated that there could be more than one order passed by the Tribunal under Section 35G and each would become the basis for reference in terms of Section 35G.
5. The learned JDR, Smt. J.K. Chander, pleaded that no final order in terms of Section 35C had been passed by the Tribunal and pleaded that even though more than one order may be passed by the Tribunal in one case, but the reference could be made in terms of Section 35G only after the passing of the final order. She pleaded that the jurisdiction on the East Regional Bench had been conferred by the Hon'ble High Court, Calcutta for disposal of the preliminary point raised and it was in terms of that direction that the East Regional Bench proceeded to decide the preliminary question relating to the jurisdiction of the Tribunal to entertain the appeal against the order of the Additional Collector of Central Excise. She cited the case of Collector of Central Excise, Madras v. Chennai Bottling Company, Madras-1985 (19) ELT 129 (Tribunal).,
6. We observe that under Section 35G of the Central Excises & Salt Act, a reference case as formulated by the Tribunal to the High Court is contemplated in case of question of law arises out of an order passed under Section 35C of the said Act. The terms in which orders under Section 35C can be passed are spelt out under the said Section. For convenience of reference the relevant Section 35C(1) is reproduced below i "The Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such, decision or order with such directions as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary."
It is seen that under Section 35C, the orders to be passed are on appeal against the orders of the lower authorities and such order can either be confirmed, modified or remanded back to the lower authority with suitable directions, if any. Order passed by the East Regional Bench under directions of the High Court, Calcutta is on the interpretation of the statute as to the competent forum for entertaining the appeal against the order of the Additional Collector. This point has not arisen out of the lower authority's order. It, therefore, cannot be taken to be an order passed in terms of Section 35C. Inasmuch as the reference contemplated under Section 35C has to be only on the points of law arising in the orders passed under Section 35C and since the order of the East Regional Bench is not the one passed under that section, we hold that no reference lies against that order. We, therefore, reject the appellants plea and dismiss the Reference Application. In view of what we have held above, we do not find it necessary to go into other points raised by the appellants.