Customs, Excise and Gold Tribunal - Delhi
Sidheshwar Sahakari Sakhar Karkhana ... vs Collector Of Central Excise on 4 August, 1986
Equivalent citations: 1987(27)ELT79(TRI-DEL)
ORDER V.T. Raghavachari, Member (J)
1. In terms of Notification No. 108 of 1978 CE dated 28-4-1978 the appellants M/s. Sidheshwar Sahakari Sakhar Karkhana Ltd. had claimed rebate of Rs. 5,76,963.00 in respect of excess sugar produced by them. Under letters dated 28-10-1978 and 3-12-1978 the Superintendent had sanctioned rebate of Rs. 3,64,346.39 paise and rejected the claim in respect of the balance of Rs. 2,22,616.61 paise. Subsequently under letter dated 18-4-1979 the Superintendent intimated the appellants that on review it was found that the amount of rebate allowed on free sale sugar should have been to the extent of basic duty only and hence an amount of Rs. 88,524.42 paise had been granted in excess as rebate and that adjusting a sum of Rs. 7,946.93 paise as payable in respect of the quantity of sugar processed out of left over material the balance of Rs. 80,577.49 was to be recovered from the appellants and that they should debit this amount in the PLA. An appeal against the said order was dismissed by the Appellate Collector of Central Excise Bombay under his order dated 15-12-1980. The appellants preferred a revision petition to the Government which, on transfer, is now before us as a deemed appeal.
2. We have heard Shri K.P. Joshi, Advocate for the appellants and Shri K.C. Sachar, JDR for the Department.
3. Shri Joshi submitted that no show cause notice had been issued to the appellants before the Superintendent passed his order dated 18-4-1979 and no hearing had been granted and for that reason itself the order was bad in law. When it was pointed out to Shri Joshi that this ground had been raised before the Appellate Collector but not pressed in the hearing before him Shri Joshi said that he would not further pursue this submission.
4. Shri Joshi then drew our attention to the provisions of Rule 10 Central Excise Rules as it stood at the relevant time and claimed that under the said Rule a notice was to be issued before any amount wrongly refunded is to be recovered and that, on submission being made in that regard by the assessee, the Assistant Collector was to consider the said submissions and then pass orders on the issue. He submitted that thus there was a failure to abide by the mandatory provisions of Rule 10 and for that reason also the orders of the Superintendent was bad in law. He contended that even if the question of notice and representation following the same is to be ignored in view of the abandonment of the plea based on the same (as noted earlier) the jurisdiction to pass an order was with the Assistant Collector only and the Superintendent had no jurisdiction to pass the order directing recovery of the alleged wrong refund. Shri Joshi further contended that the Superintendent was not entitled in law to review his own order and for this reason also the order of the Superintendent dated 18-4-1979 was bad in law. Shri Sachar on the other hand contended that the plea as to want of notice under Rule 10 should also be deemed to have been waived and abandoned in the proceedings before the Appellate Collector and the same plea could not be revived before us. He further contended that the Superintendent would have an inherent power to rectify a mistake in his earlier order and therefore no fault could be found with the order of the Superintendent since the earlier order granting refund of the additional duties also was not in accordance with law.
5. The order of the Superintendent reads "on review it is found that the amount of rebate allowed on free sale sugar Item No. II (i) and (ii) should have been to the extent of basic duty only and therefore an excess rebate of Rs. 88,524.42 was allowed to you ...". Thus under this order dated 18-4-1979 the Superintendent purported to review his earlier orders under letters dated 28-10-1978 and 3-12-1978. It is well settled law that no quasi judicial authority has a right to review its earlier order unless such a right to review has been expressly conferred by statuted. Admittedly there was no such right of review conferred in law on the Superintendent. The mistake that he purported to rectify was not a clerical error but a mistake in substance since according to him excess refund had been granted in respect of duty which was legally payable and in respect of which no refund was permissible. It is therefore clear that in passing his order dated 18-4-1979 the Superintendent purported to exercise a right which was not available to him in law.
6. Further such 'a proceeding to claim recovery of a refund wrongly granted is to be exercised under Rule 10 of the Central Excise Rules and under the said Rule as it stood at the relevant time the authority competent to pass an order on adjudication after issue of notice under Rule 10 was the Assistant Collector and not the Superintendent. Since the order dated 18-4-1979 was passed by the Superintendent and not the Assistant Collector it follows that the Superintendent acted in excess of his jurisdiction in passing the, said order.
7. For both these reasons we hold that the order of the Superintendent of 18-4-1979 was not legal. Accordingly we allow this appeal and set aside the orders of the lower authorities.