Customs, Excise and Gold Tribunal - Delhi
Sparr Equipments Ltd. vs Collector Of Central Excise on 4 December, 1991
Equivalent citations: 1992(42)ECR702(TRI.-DELHI)
ORDER
Harish Chander, Vice President
1. M/s. Sparr Equipments Ltd., 122/1, Railway Colony Road, Yeshwantpur, Bangalore-560022 have filed an appeal being aggrieved from the order passed by the Collector of Central Excise (Appeals), Madras. The said appeal was received in the Registry on the 10th November, 1989, that is, within limitation. The present appeal is against Collector of Central Excise (Appeals) Order-in-Appeal No. 183/89(B) dated 7.8.1989 and the appeal before the Collector (Appeals) was against the order passed by the Assistant Collector of Central Excise, Yeshwantpur Division dated 28/31.10.1988 issued from file C.No. V/84/3/207/86. Thereafter the applicant has filed a stay application which was received in the South Regional Bench, Madras, on 1.4.1991, and the same-was transferred to the Central Registry at New Delhi. The applicant has sent a telegraphic request for listing the matter on 2.12.1991 as the authorities were pressing for payment. Shri Sampath, the learned advocate, had made a mention in the open Court on 2.12.1991 and on his request the stay application, after the consent of both the sides, has been listed for hearing today.
2. When the stay application was taken up for hearing, Shri M.S. Arora, the learned JDR, raised a preliminary objection that the present stay application is against the Order OC No. 1528/90 dated 6.12.1990 passed by the Superintendent of Central Excise, Yeshwantpur I Range. He stated that since the order was passed by the Superintendent of Central Excise, an appeal is to be filed before the Collector of Central Excise (Appeals), in terms of the provisions under Section 35 of the Central Excises and Salt Act, 1944. He pleaded that the appeal No. E. 3979/89-B1 is against the order passed by the Collector of Central Excise (Appeals), Madras, which was against the classification order passed by the Assistant Collector and he had upheld the findings of the Assistant Collector and being not satisfied with the order passed by the Assistant Collector, the appellant has gone in appeal before the Tribunal. In support of his arguments, he cited a decision of the Allahabad High Court in the case of I.T.C. Ltd. v. Union of India . He laid special emphasis on paras 44, 45, 46 and 47 of the said judgment where Hon'ble High Court has observed that since the order dated 28lh April 1988 is by Assistant Collector of Central Excise, an appeal lies to the Collector of Central Excise (Appeals) under Section 35 of the Act, and Section 35A of the Act gives very wide power to the Collector of Appeals. He pleaded that the present stay application is against the order passed by the Superintendent of Central Excise and as such it is not maintainable before the Tribunal as there is no valid appeal before the Tribunal against the order passed by the Superintendent of Central Excise.
3. Shri G. Sampath, the learned advocate for the applicant, in reply to the preliminary objection raised by Shri M.S. Arora, pleaded that the Superintendent is the assessing officer for the Range and he has raised the demand correctly in pursuance of the order passed by the Assistant Collector which has been upheld by the Collector (Appeals). Shri Sampath pleaded that the Assistant Collector is the only proper officer to approve the classification list in terms of provisions of Rule 173B of the Central Excise Rules and the present demand raised is a consequential effect and that the order passed by the Collector (Appeals) is the subject matter of an appeal before the Tribunal and the appellant has challenged the same. He pleaded that the Superintendent of Central Excise being the proper officer has raised demand and the appeal is maintainable and as a result the stay application is also maintainable. He also argued that the demand raised by the Superintendent is part of the Assistant Collector's order which has been upheld by the Collector (Appeals) and the quantification of the demand is just an arithmetical calculation and the quantification done by the Superintendent of Central Excise falls part of the appeal proceedings which are pending before the Tribunal. Alternatively, he pleaded that the Tribunal should exercise its inherent powers in granting the stay as the Revenue authorities are pressing hard for the recovery of the duty amount as ordered by the Superintendent of Central Excise.
4. In reply, Shri M.S. Arora, again drew the attention of the Bench to the provisions of Section 35 of the Central Excises and Salt Act, 1944. He argued that the appeal to the Tribunal lies in terms of Section 35B of the Central Excises and Salt Act, 1944. He pleaded that since the stay application before the Tribunal is against the order passed by the Superintendent of Central Excise and as there is no appeal against that order before the Tribunal, the stay application should be dismissed.
5. We have heard both the sides and have gone through the facts and circumstances of the case. For the proper appreciation of the legal position, Section 35 and 35B(1) of the Central Excises and Salt Act is reproduced below:
Section 35. Appeals to Collector (Appeals): - (1) Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer lower in rank than a Collector of Central Excise may appeal to the Collector of Central Excise (Appeals) [hereinafter in this Chapter referred to as the Collector (Appeals)] within three months from the date of the communication to him of such decision or order:
Provided that the Collector (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months, allow it to be presented within a further period of three months.
(2) Every appeal under this section shall be in the prescribed form and shall be verified in the prescribed manner.
Section 35B. Appeals to the Appellate Tribunal: - (1) 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.
In the matter before us, a simple perusal of Section 35 clearly shows that any person aggrieved by any decision under the Central Excises and Salt Act passed by a Central Excise Officer lower in rank than Collector of Central Excise may appeal to the Collector (Appeals). In the matter before us, the order has been passed by the Superintendent of Central Excise. We have looked into the show cause notice in respect of the classification which appears on page 5 of the appeal paper book and also perused the orders passed by the Assistant Collector as well as Collector (Appeals). There is no whisper about the demand in the show cause notice or in the order passed by the Assistant Collector or in the order passed by the Collector (Appeals). Right to file a stay application emerges from the pendency of the appeal before the Tribunal. Since there is no appeal pending against the order passed by the Superintendent of Central Excise before the Tribunal, the present stay application cannot be treated as an application for stay. In para 16 of the application, the applicant has made a prayer for grant of relief. Para 16 of the stay application is reproduced below:
16. The Appellant further submits that apart from the prima facie case and liquidity position even the balance of convenience is in favour on waiver of pre-deposit of said amount in question, The Appellant therefore prays that this Hon'ble Tribunal may be pleased to waive the pre-deposit of duty demanded in the Superintendent's letter dated 6.12.1990 and to stay its recovery during the pendency of the appeal in the interest of the justice. The Appellant has not preferred any Stay Application before any court.
A simple perusal of para 16 shows that the present stay application is only against the order passed by the Superintendent of Central Excise dated 6.12.1990 and for raising the demand in that letter. Shri Sampath during the course of arguments had also made a mention that the demand raised by the Superintendent of Central Excise is not proper and correct in accordance with law as the Superintendent of Central Excise has not issued any show cause notice. Since the main appeal is not against the Superintendent's order and it is not before us, it will not be proper for us to give our observations on merits at this stage and we refrain ourselves from doing the same as the proper forum for the filing of appeal against the order passed by the Superintendent is before the Collector of Central Excise (Appeals) having jurisdiction. We are' told that the applicant has not filed any appeal also against the order passed by the Superintendent of Central Excise. In view of the legal and factual position discussed above, we are of the view that since the order has been passed by the Superintendent of Central Excise an appeal should have been filed before the Collector of Central Excise (Appeals) having jurisdiction. Our view is further fortified by the views expressed by the Allahabad High Court in the case of I.T.C. Ltd. v. Union of India Shri Arora during the course of arguments has laid emphasis on paras 44 and 45 of the said judgment, which are reproduced below:
44. The Director General in his order dated 10th April 1986 recorded categorical findings in regard to the disputed issues relating to the show cause notices. These findings are contained in para 18.1 of the order. The Director General further found that the charges of mis-representation and suppression of facts have been proved beyond doubt against the petitioner-company and accordingly he held that company is liable to penal action under Rule 173Q of the Rules. In this order he brought it to the notice of the petitioner that an appeal against the order dated 10th April 1986 lies to the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi, within three months from the date of its communication and that appeal has to be filed in accordance with the provisions of Rule 216 of the Rules. Petitioner-company admittedly did not file any appeal against the order dated 10th April 1986 and as such the order dated 10th April 1986 has become final. In pursuance of the order dated 10th April 1986 Assistant Collector of Central Excise has issued a demand order dated 28th April 1988 which has been impugned in the present petition. Whether this order is contrary to the Director General's order dated 10th April 1986 has to be considered by an authority to whom an appeal lies against the order dated 28th April 1988. This Court under Article 226 cannot act as Court of appeal. Whether the order dated 28th April 1988 is contrary to the Director General's order is based on facts as well as on the interpretation of the order dated 10th April 1986. This question can more appropriately be dealt with by an appellate authority before whom order dated 28th April 1988 is challenged.
45. Section 35 of the Act clearly provides that any person aggrieved by any decision or order passed under the Act by a Central Excise Officer lower in rank than a Collector of Central Excise may appeal to the Collector of Central Excise (Appeals) within three months from the date of the communication to him of such decision or order. Section 35A lays down the procedure in appeal. Sub-clause (3) of Section 35A provides that the Collector (Appeals) may after making such further inquiry as may be necessary pass such order as he thinks fit confirming, modifying or annulling the decision or order appealed against or may refer the case back to the adjudicating authority with such directions as the case may be after taking additional evidence if necessary. Sub-clause (4) of Section 35A further provides that the order of the Collector (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reasons for the decision.
6. In view of the above observations, we are of the view that the present stay application against the order passed by the Superintendent of Central Excise dated 6.12.1990 is not maintainable before the Tribunal as no appeal is pending. The appellant is at liberty to file an appeal before the Collector (Appeals) if the appellant so chooses in accordance with law. We further order that in case the appellant chooses to file an appeal before the Collector (Appeals), the Collector (Appeals) shall construe the provisions to Section 35 for condonation of delay very liberally as the appellant had been vigilant all along in pursuing the proceedings before a wrong forum. Shri Sampath during the course of arguments had also made a prayer for exercise of inherent powers for staying the recovery proceedings started by the Revenue authorities as they are insisting hard for the recovery of the amounts demanded. Since no appeal is pending against the Superintendent's order before us, in accordance with law we are of the view that if will not be proper for us to exercise inherent powers and as such the request in this regard is rejected. However, we shall appreciate if the department keeps the recovery proceedings in abeyance for a reasonable period to enable the present applicant to approach the proper forum. In the result, the stay application is rejected.
Pronounced and dictated in the open Court.