Customs, Excise and Gold Tribunal - Delhi
Wimco Limited vs Collector Of Central Excise on 28 October, 1986
Equivalent citations: 1987(10)ECR219(TRI.-DELHI), 1986(26)ELT877(TRI-DEL)
ORDER V.T. Raghavachari, Member (J)
1. In connection with manufacture and clearance of safety matches, the appellants M/s Wimco Ltd. had applied for set off of excise duty paid on goods falling under tariff item 68 used as inputs in the manufacture of matches by them. They relied upon Notification N0.178/77-CE dated 18-6-1977 in this connection. The Assistant Collector of Central Excise Dhubri rejected the said claim under his order dated 4-6-1980 and made reference to Notification No. 201/79-CE dated 4-6-1979 and Notification No. 264/79-CE dated 29-9-1979 in this connection. He pointed out that the goods had been already cleared by the appellants without availing of set off and under Notification No. 201/79 no cash refund was admissible and that under Notification No. 264/79 set off was not available as duty had been paid by the appellants through banderols. Prior to the date of the said order (that is) on 20-5-1980, the appellants had sent a letter to the Collector of Central Excise, Shillong referring to their claim for set off pending with the Assistant Collector and seeking his intervention in that matter for an early settlement of the said claim. In response to that letter the Collector sent a reply dated 27-6-1980 (i.e.) after the order of the Assistant Collector, mentioning therein "I am directed to say that since you did not avail of set off of duty at the time of removal of the finished matches no relief by way of refund or adjustment in the PLA can be granted to you. However you may approach the Central Board of Excise and Customs New Delhi for a special permission in the matter". This letter had been signed by Deputy Collector on behalf of Collector.
2. Subsequently the appellants filed an appeal before the Central Board of Excise and Customs referring to the facts mentioned earlier, and stating (ground N in the appeal) that as the Collector had also given his views and opinion amounting to a decision, through the letter of the Deputy Collector, the appeal was being filed for quashing the order of the Assistant Collector as also the "said letter" of the Collector and allowing the claim of the appellants. This was rejected by the Central Board under order dated 31-10-1980. The order read "The Board observes that in this case, on the same issue a formal appealable order had also been passed by the Assistant Collector of Central Excise, Dhubri. The appellants should have gone in appeal against that order by duly following the instructions given in the preamble to the adjudication order instead of referring the matter to the Collector. Accordingly the Board rejects this appeal as not made to the proper authority". The appellants preferred a revision petition to the Central Government against that order of the Central Board. The same is now before us, on transfer, as this deemed appeal.
3. On the appeal being taken up Shri V.M. Doiphode raised a preliminary objection that the appellants could not prefer an appeal direct to the Central Board against the order of the Assistant Collector and that the latter of the Collector would not be an order against which an appeal would lie and therefore the appeal to the Board was incompetent and, in the circumstances, no revision could have been filed against the communication by the Board dated 30-10-80. Shri Doiphode contended that even this communication dated 30-10-1980 would not be an order. According to him the letter of the Collector dated 27-6-1980 as well, as the communication of the Board dated 30-10-80 were not orders but merely administrative communications. Shri V. Lakshmikumaran, Advocate for the appellants, on the other hand, claimed that the letter of the Collector dated 27-6-1980 was an order which in its own effect denied relief to the appellants and could therefore be questioned in an appeal against the same. He pointed out that in its order dated 30-10-1980 the Central Board also referred to the letter of the Collector as an order of the Collector and the the decision of the Board was also styled as an order, the result thereof being to reject the appeal preferred by the appellants. He therefore contended that the preliminary objection raised on behalf of the department was without substance.
4. The purport of the letter of the Collector dated 27-6-1980 has been extracted earlier. That letter was no doubt in response to the letter of the appellants dated 20-5-1980. Under that letter the appellants had requested the Collector merely to instruct the Assistant Collector to deal expeditiously with their claim for set off. Under his order dated 4-6-1980 the Assistant Collector rejected the claim for set off. It was open to the Collector in sending a reply to the communication of the appellants dated 20-5-80, to have merely referred to the order of the Assistant Collector dated 4-6-1980 and mentioned that as the Assistant Collector had disposed of the matter the appellants may refer to that order,, nothing more remaining to be done by the Collector. But, unfortunately, the Collector had not done so but had sent his letter dated 27-6-1980 as if he himself was thereunder denying the relief of set off claimed by the appellants, without making any reference to the order of the Assistant Collector. Shri Lakshmikumaran contends that faced with this letter the appellants were placed in a dilemma and had to decide whether they should go in appeal to the Appellate Collector against the order of the Assistant Collector or to treat the letter of the Collector as a decision or order and file an appeal against the same to the Central Board. Shri Lakshmikumaran contends that faced with this dilemma the appellants decided that as the letter dated 27-6-1980 contained a decision by the Collector the appellants were bound to appeal against the said order and they therefore preferred the appeal to the Central Board, mentioning that the said appeal was against the order of the Collector as well as the order of the Assistant Collector and that both orders may be set aside.
5. In support of his contention Shri Doiphode relies upon certain decisions as supporting his preliminary objection. The first decision relied upon by him is that of the Allahabad High Court in Gangadhar Baijnath v. Commissioner of Income-tax (1965, Vol. 58 ITR 186). He points out that the High Court has held therein that a particular order of an Income Tax Officer not being an appealable order the purported appeal against the same before the Appellate Assistant Commissioner did not lit and was therefore properly rejected and that therefore no appeal lay from the order of the Appellate Assistant Commissioner to the Appellate Tribunal. Shri Doiphode's contention is that, similarly, in the present case also, the communication by the Collector not being an order no appeal lay against the same to the Central Board and when the Central Board rejected the purported appeal no further appeal lay against the same to the Tribunal. But we may see that the said decision revolved round the words of Section 25, 30 and 31 of the Indian Income Tax Act, 1922. The High Court pointed out that the particular order of the Income Tax Officer was not an order against which an, appeal was provided for under Section 30(1) and hence the purported appeal to the Appellate Assistant Commissioner did not really lie. It was in those circumstances that it was further held that the order of the Appellate Assistant Commissioner cannot be regarded as an order passed under Section 31(3) and, therefore, no appeal lay against the said order to the Appellate Tribunal. On the other hand it may be seen that Section 35 of the Central Excises and Salt Act (as it stood at the relevant time) provided for an appeal by any person deeming himself aggrieved by any decision or order passed by a Central Excise Officer, appeal being provided to separate authorities depending upon which Officer passed the original decision or order. Therefore, unlike the provisions of the Indian Income Tax Act, 1922 which restricted the right of appeal against the orders passed under particular sections only, the Central Excises and Salt Act (as it then stood) provided for an appeal against any decision or order by a Central Excise Officer. We may in this connection note the undermentioned passage in the Judgment of the Allahabad High Court (occurring at page 191) "Shri Jagdish Swarup contended that the interpretation we placed would leave an assessee without remedy against a wrong order by an Appellate Assistant Commissioner that the appeal is incompetent or does not lie. If this is the result it is not because of the interpretation being wrong but because that was the policy of the legislature. The legislature was not bound to provide a remedy against that wrong order. If it intended to have remedy in such a case it should have laid down in Section 33 that an appeal would lie to the Tribunal from any order passed by the Appellate Assistant Commissioner". As earlier mentioned the provisions in the Central Excises and Salt Act at the relevant time provided for an appeal against any order or decision. 4n the circumstances we are satisfied that reliance on the decision cited supra on the part of the department is not helpful.
6. The next decision cited by Shri Doiphode is that of the Supreme Court in Jaswant Sugar Mills v. Laxmi Chand (AIR 1963 Supreme Court 677). He relied upon this decision to contend that the letter of the Collector dated 27-6-1980 was merely an administrative order and not a judicial order against which an appeal would lie. He referred to the observations in paragraph 13 of the judgment (page 682 of the report) in this connection. They are as follows:
"To make a decision or an act judicial, the following criteria must be satisfied:
(1) It is in substance a determination upon investigation of a question by the application of objective standards to facts found in the light of pre-existing legal rules;
(2) it declares rights or imposes upon parties obligations affecting their civil rights; and (3) that the investigation is subject to certain procedural attributes contemplating an opportunity of presenting its case to a party, ascertainment of facts by means of evidence if a dispute be on question of law on the presentation of legal argument, and a decision resulting in the disposal of the matter on findings based upon those questions of law and fact."
7. Judged by the ratio of said decision also it appears to us that the communication of the Collector dated 27-6-1980 did amount to an order. The said order referred to the earlier letter of the appellants dated 20-5-1980 (wherein they had elaborately referred to their claim for set off and the grounds thereof) and under his letter the Collector was intimating them that they were not entitled to the relief claimed, giving the reason also for the said conclusion. No doubt the appellants had not been granted a hearing before the Collector sent the said communication. But since under the said letter the Collector referred to the nature of the claim and declined, and purported to decline, to grant the relief and further purported to give the reason for the said conclusion also, it appears to us that judged by the ratio of the decision of the Supreme Court cited Supra the communication dated 27-6-1980 did amount to a decision or order. As earlier mentioned, Section 35 of the Central Excises and Salt Act-provided for an appeal against any decision or order of a Central Excise Officer.
8. Shri Doiphode then referred to the decision of this Tribunal in Brooke Bond India Ltd. v. Collector of Central Excise (1983 ELT 1169). He pointed out that the Tribunal had held therein that a letter by the Deputy Collector cannot be considered as an adjudication order. Prom the decision we are unable to discover what were the contents of the said letter of the Deputy Collector dated 30-6-1975 and why the Tribunal did not consider the same to be a decision or order. On the other hand, we have seen that the letter of the Collector in the present instance dated 27-6-1980 amounted to a decision or order. In the other case relied on by Shri Doiphode, New Horizon Sugar Mills Private Limited v. Assistant Collector of Central Excise (1979 ELT-J 75), a contention was raised before the Madras High Court that when the Assistant Collector directed the assessee by letter dated 24-10-1975 to revise its claim for rebate whether that would amount to a decision or order against which an appeal had to be preferred and therefore no proceeding for issue of a writ would lie. It was pointed out that even in the counter-affidavit (of the department) it was only mentioned that the communication dated 24-10-75 only contained the view of the Assistant Collector. Taking note of that circumstance also the High Court held that the communication dated 24-10-1975 was not an order.
9. It is therefore seen that none of the decisions relied upon by Shri Doiphode support his contention that, in the present case, the letter of the Collector dated 27-6-1980 did not amount to a decision or order which could be convassed under Section 35 of the Act. On the other hand it may be seen that even in the order of the Board the letter of the Collector is referred to as an order of the Collector of Central Excise Shillong conveyed by the said letter. The dismissal of the appeal was also not on the ground that the communication of the Collector did not amount to a decision or order against which an appeal could be preferred but on the ground that as the appellants had not preferred an appeal against the order of the Assistant Collector they had no right to file an appeal against the communication by the Collector. It was for this reason that the Board further held that as the right of the appellants was to file ah appeal against the order of the Assistant Collector only, the appeal before them was not made to the proper authority. It is hence clear that even the Board did not reject the appeal on the ground that the communication by the Collector did not amount to a decision or order against which no appeal lay under the provisions of the Act.
10. It is not necessary at present to go into the question whether the conclusion of the Board as to the effect of the omission on the Dart of the appellants to file an appeal against the order of the Assistant Collector was correct or not. We are at present concerned only with this preliminary objection that the letter of the Collector not being a decision pr order no appeal lay against the same to the Board and, consequently, as claimed by Shri Doiphode, even the order of the Board dated 30-10-1980 was not in law an order against which any revision would lie under the Act.
11. For the reasons stated earlier we hold that the preliminary objection raised on behalf of the department is without merits, the same is accordingly over ruled and appeal is directed to be posted for hearing on merits on 1-12-1986.