Customs, Excise and Gold Tribunal - Delhi
Collector Of C. Ex. vs Pops Foods Products (P) Ltd. on 24 October, 1990
Equivalent citations: 1991ECR254(TRI.-DELHI), 1991(53)ELT52(TRI-DEL)
ORDER Harish Chander, Member (J)
1. Collector of Central Excise, Bangalore has filed a review application in Form No. E.A. 5 and the same was received in the Registry on the 27th day of July, 1983, being aggrieved from the order passed by the Appellate Collector of Central Excise, Madras. Notices of hearing were sent to the respondents from time to time. No body has appeared on behalf of the respondents. Accordingly, we proceed to decide the same on merits.
2. Shri M.K. Sohal, learned JDR has appeared on behalf of the appellant. The matter had come up for hearing earlier on 31st July, 1990 and 17th August, 1990. And earlier also, on 31st July, 1990, the Bench had pointed out to the learned JDR that the review application filed by the Revenue is against the order passed by the Appellate Collector of Central Excise, Madras and, as such, an appeal should have been filed and not a review application and appeal should have been filed in terms of provision of Section 35B of the Central Excises & Salt Act, 1944, and not a review application under Section 35E of the Central Excises & Salt Act, 1944. In the interest of justice, the matter was adjourned to 17th August, 1990 and again for want of time the matter was adjourned for today. At the outset of the hearing, the Bench pointed out to Shri M. K. Sohal, learned JDR that though an opportunity to rectify the defect was duly given to the appellant, but the same has not been done so far. Shri Sohal requests for adjournment, but Bench is not inclined to grant the same as sufficient time has already been given. Accordingly, we proceed to decide the same on merits.
3. Shri M. K. Sohal, learned JDR, pleaded that the review application filed by the Revenue was filed when this Tribunal was just set up, and as such, the appellant was not fully conversant with the procedure and as such, the appellant had bona fidely filed the review application to be treated as an appeal by the Tribunal. Shri Sohal pleaded that though it is a review application, the same may be treated as an appeal.
4. We have heard Shri Sohal and have gone through the facts and circumstances of the case. Before we can consider the permission for the grant of permission for the treating of review application as an appeal, we would like to go through the provisions of law. Section 35B of the Central Excises & Salt Act, 1944, authorises the Collector to file an appeal. Sub-sections (1) and (2) of Section 35B of the Central Excises & Salt Act, 1944 are reproduced below :
Sub-section (1) of Section 35B : Appeals to the Appellate Tribunal "Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order -
(a) a decision or order passed by the Collector of Central Excise as an adjudicating authority;
(b) an order passed by the Collector (Appeals) under Section 35A;
(c) an order passed by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) (hereafter in this Chapter referred to as the Board) or the Appellate Collector of Central Excise under Section 35, as it stood immediately before the appointed day;
(d) an order passed by the Board or the Collector of Central Excise, either before or after the appointed day, under Section 35A, as it stood immediately before that day:
[Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such order relates to, -
(a) 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;
(b) a rebate of duty of excise on goods exported to any country or territory outside India or on excisable materials used in the manufacture of goods which are exported to any country or territory outside India;
(c) goods exported outside India (except to Nepal or Bhutan) without payment of duty:
Provided further that] the Appellate Tribunal, may, in its discretion, refuse to admit an appeal in respect of an order referred to in clause (b) or clause (c) or clause (d) where -
(i) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or
(ii) the amount of fine or penalty determined by such order, does not exceed ten thousand rupees.
[(1A) Every appeal against any order of the nature referred to in the first proviso to Sub-section (1), which is pending immediately before the commencement of Section 47 of the Finance Act, 1984 before the Appellate Tribunal and any matter arising out of, or connected with, such appeal and which is so pending shall stand transferred on such commencement to the Central Government, and the Central Government shall deal with such appeal or matter under Section 35EE as if such appeal or matter were an application or a matter arising out of an application made to it under that Section.] Sub-section (2) of Section 35B:
"The Collector of Central Excise may, if he is of opinion that an order passed by the Appellate Collector of Central Excise under Section 35, as it stood immediately, before the appointed day, or the Collector (Appeals) under Section 35A, is not legal or proper, direct any Central Excise Officer authorised by him in this behalf (hereafter in this Chapter referred to as the authorised officer) to appeal on his behalf to the Appellate Tribunal against such order."
Section 35E of the Central Excises & Salt Act, 1944, as in force at the time of the filing of the review application, is reproduced below :
35E - Powers of Board or Collector of Central Excise to pass certain orders -
"(1) The Board may, of its own motion, call for and examine the record of any proceeding in which a Collector of Central Excise as an adjudicating authority has passed any decision or under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such Collector to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the Board in its order.
(2) The Collector of Central Excise may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct such authority to apply to the Collector (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Collector of Central Excise in his order.
(3) No order shall be made under Sub-section (1) or Sub-section (2) after the expiry of one year from the date of the decision or order of the adjudicating authority.
(4) Where in pursuance of an order under Sub-section (1) or Sub-section (2), the adjudicating authority or the authorized officer makes an application to the Appellate Tribunal or the Collector (Appeals) within a period of three months from the date of communication of the order under Sub-section (1) or Sub-section (2) to the adjudicating authority, such application shall be heard by the Appellate Tribunal or the Collector (Appeals), as the case may be, as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals, including the provisions of Sub-section (4) of Section 35B shall, so far as may be, apply to such application."
A comparative perusal of Sections 35B and 35E shows that where the Revenue files an appeal, an appeal has to be filed against the order passed by Collector of Central Excise (Appeals) or Appellate Collector of Central Excise. Whereas a review application can be filed by the Board where an order has been passed by the Collector as an adjudicating authority and the review application is to be filed before the Tribunal and where the order has been passed by an Assistant Collector, the Collector has to pass an order for filing the review application before the Collector of Central Excise (Appeals). In any case, while disposing of these review applications, Collector of Central Excise (Appeals) has to treat them as 'appeals'. In the matter before us, the impugned order has been passed by the Appellate Collector of Central Excise and the order is dated 15th March, 1982, and the Collector's authorisation to file an application under Sub-section (2) of Section 35E is dated 17th January, 1983. For the proper appreciation of the correct legal position, Collector's letter dated 17th January, 1983 is reproduced below:
OFFICE OF THE COLLECTOR OF CENTRAL EXCISE & CUSTOMS : CENTRAL REVENUES BUILDING, QUEEN'S ROAD : P.B. NO. 5400 : BANGALORE - 560 001 C. No. IV/3/24/82 (Appeals) Dated; 17-1-1983 ORDER In terms of Sub-section (2) of Section 35E of the Central Excises and Salt Act, 1944, as amended, I direct the Assistant Collector (Legal), Headquarters Office, Bangalore to file an application to the Appellate Tribunal under Sub-section (4) of Section 35E of the Central Excises and Salt Act. 1944 in Form EA-5 against the Order-in-Ap-peal No. 57/82(B) dated 15-3-1982 passed by the Appellate Collector of Central Excise, Madras - 34, for quashing the said order and for restoration of order-in-original passed by the Assistant Collector of Central Excise, Rajajinagar Division, Bangalore.
Sd/-
(C.K. Gopalakrishnan) Collector of Central Excise & Customs, Bangalore.
A simple perusal of the authorisation shows that the authorisation was for the filing of an application to the Appellate Tribunal. Perusal of the Appeal Memo and records show that the Revenue had chosen to file a review application before the Tribunal under Section 35E(2) of the Central Excises and Salt Act, 1944. It appears that the same has been filed by mistake. In view of these observations, we hold that no proper appeal has been filed before this Tribunal and this review application cannot be treated as an appeal, as the impugned order was passed by the Appellate Collector Central Excise, Madras, and if the Revenue was aggrieved from the aforesaid order, the Revenue should have filed an appeal before the Tribunal in terms of provision of Section 35B of the Central Excises and Salt Act, 1944 read with the Removal of Difficulties Order, 1982 within the limitation period. For statistical purposes, the appeal is dismissed.