Customs, Excise and Gold Tribunal - Mumbai
Dawn Miles Co. Ltd. vs Commissioner Of Central Excise on 15 February, 2000
Equivalent citations: 2000(118)ELT541(TRI-MUMBAI)
ORDER G.N. Srinivasan, Member (J)
1. These three appeals have been placed before me today and it is better after I narrate the facts relating to appeals No. E/605/94 & E/606/94.
2. Appellants are engaged in the manufacture of excisable goods falling under TI. 18A/CH 52 and 55 of Central Excise Tariff. The Annual Stock Taking was conducted on 1-7-1982 on 1-7-1986 and 1-4-1992 revealed mixed trend of excess and shortages, in respect of various counts of cotton as well as man made yarn. The Range Superintendent issued three show cause notices dated 16-1-1984, 3-12-1986 and 21-5-1992 calling upon the assessee pay the amount of Rs. 26,472.21, Rs. 40,699.14 and Rs. 14,243.28 respectively. These show cause notices adjudicated by the Assistant Commissioner by this Orders dated 29-7-1992 and 7-8-1992 condoning shortages upto 2%. Against the same appeals were filed before the Collector (Appeals) who by the impugned orders dated 4-8-1993 dismissed the same. Against those two orders this appeals were filed before the Tribunal and the Tribunal by the order dated 20-1-1994 passed the following.
When the parties admit that the matter pertains to Stock Taking loss, the same have to be held as not falling within the jurisdiction of the Tribunal. The papers be returned for presentation before appropriate authority.
The assessee went to the Government of India who by the Order dated 8-6-1994. The Government accordingly held that the case is not maintainable before the Central Government under Section 35EE of the Central Excise Act. However, it is open to the party to move an appeal before appropriate forum if so advised.
3. In the third appeal (E/598/94-Bom) also the two show cause notices dated 1-9-1989 and 4-2-1988 were given calling upon assessee to pay a sum of Rs. 76,678.31 and Rs. 95,900.61 and the Additional Collector Central Excise Bombay, I condone the shortages in both the cases to the extent of 2% only and called upon the Assistant Collector to workout the amount of duty payable by the assessee. On the said basis an appeal was filed and the Collector (Appeals) Bombay by his Order No. 268/94, dated 4-5-1994 confirmed the same. The instant appeal (E/598/94) has been filed before the Tribunal and unlike in other two appeals did not pass any order returning the papers to the appellant. But however when the matter came up for hearing on 24-11-1999, it was represented by Shri M.H. Patil the ld. Advocate that the Appeal E/598/94 should be tagged with other Appeals No. E/605 & 606/94-Bom since identical questions were involved. Hence they were adjourned.
4. When the appeals were taken up for hearing Shri Deepak Kumar ld. JDR rises the preliminary objection that the Tribunal does not have Jurisdiction to hear the appeals. Shri M.H. Patil the ld. Advocate for the appellant states that in view of the specific provisions of the proviso to Section 35B (1) of the Central Excise Act, the Tribunal has Jurisdiction to hear the appeals. He states that Clause (1) of proviso to Section 35B(1) of the Central Excise Act provides as follows :
"a case of loss of goods, where the loss occurs in transit from a factory to a warehouse or to another factory, or from one warehouse to another, or during the course of processing of the goods in a warehouse or in storage, whether in a factory or in a warehouse".
He states that in the instant case the facts of case would reveal that they did not fall within town corners of the said caluse (a) therefore it is argued the Tribunal has ample Jurisdiction to determined and only the Tribunal has to hear and decide the matter.
5. I have considered the rival submissions.
6. In the three appeals it is an admitted position as far as the appellant is concerned namely that all the matters are identical, in the two Appeals namely Appeals Nos. E/605/94 & E/606/94 the Tribunal by the order revealed in letter dated 20-1-1994 has held that the matter pertains stock taking and the Tribunal does not have jurisdiction when that is the finding of the Tribunal I cannot hold a different view. The moment of Tribunal has taken a view on 20-1-1994, which was communicated to the party. Tribunal becomes functus-Officio. A person who is aggrieved by that decision could have agitated the matter before a superior authority namely the High Court by means of writ petition or to the Supreme Court invoking its extra-ordinary jurisdiction under Article 136 of the Constitution, which the appellant has not chosen to do so. He had taken the matter to the Government in compliance with the order of the Tribunal dated 20-1-1994 and the Government has since returned the papers in Appeal Nos. E/605 & 606/94-Bom. When the Tribunal has passed the order as reflected in the letter dated 20-1-1994, it is binding on me as I do not have powers to review the above orders passed by the Tribunal. The powers of the Tribunal are delineated in Section 35B of the Central Excise Act. That provision does not provide for any review by this Tribunal. No doubt the orders of the Tribunal could be brought again before the Tribunal under Section 35C(2) for rectification of mistake the face of the record or under Section 35G for reference to the High Court (this has been modified under the Finance Act, 1999). Therefore after the decision of the Tribunal only in terms of Section 35C (2) the Jurisdiction of the Tribunal could be invoked for rectifying any mistake apparent on the face of the record. The reading of the Section 35B and Section 35C will clearly show that the Tribunal does not have power to review unlike Section 114 of CPC. I am therefore constrained to accept the arguments of ld. DR and I reject the arguments made by Shri M.H. Patil, Advocate.
7. Undauntedly Shri M.H. Patil requested that the decision may not be taken by me, but he made a request that the matter be placed before the Bench because it involve a very important question of law regarding jurisdiction of the Tribunal. Again I am constrained to reject the same because the matter has been seen by Bench already as reflected in the communication dated 20-1-1994. Therefore I do not think it is necessary for me to refer the matter to the Bench.
8. As far as the Appeal No. E/598/94-Bom is concerned it is an admitted position that it is a stock taking matter identical with that of other two appeal. The appellant himself states that the issue involved is identical therefore I cannot take a different view which has already been taken in respect of other two appeals which a binding precedent. I therefore hold that in respect of appeal No. E/598/94-Bom, the Tribunal does not have Jurisdiction and the papers are directed to the returned to the appellant to prosecute before the proper authority as per law and as may be advised to the appellant. I am also hold that I am not bound by the orders passed by the Government. I further hold that any decision or instruction it may bind the departmental officer but not the Tribunal which is independent of the Government. Moreover Governments decision is not binding on the Tribunal because the Tribunal has quasi-Judicial authority and such an authority has to exercise its jurisdiction independently not controlled by any other person including Government. It has to exercise jurisdiction and decide the case after hearing the parties only it cannot seek the instruction or conferment of jurisdiction from independent agency like Government. All the three appeals are disposed of in the above manner.