1. M/s Coats of India Ltd. have filed this appeal under Section 35-B(1)(a) of the Central Excises and Salt Act, 1944 against the decision of the Collector of Central Excise, Bombay-II as conveyed to the appellants in his letter No. V-14(30) 13/81 dated 19-9-1982. This letter has been signed by the Asstt. Collector (Technical) for Collector and since M/s. Coats of India Ltd. required a decision of the Collector for approaching the Tribunal in appeal as aforesaid, they requested the Collector accordingly and the Collector has thereafter issued to them the letter No. V-14 (30) 15/81 dated 6-1-1983. In Para 5 of this letter dated 6-1-1983 the Collector has informed M/s. Coats of India Ltd. to approach the Tribunal in case they feel aggrieved by this decision. M/s. Coats of India Ltd. have tendered this letter in original and have requested the Tribunal to admit the same as fresh evidence.
2. The main cause of grievance is that the Collector had denied the appellants the benefit of Rule 56-A in regard to Notification No.201/79 dated 4-6-1979 as amended by Notification No. 5/81 dated 21-1-1981 which permits a manufacturer, not in a position to make application in time under Rule 56-A of the Central Excise Rules, 1944 to have the delay in making the application condoned by the Collector under certain circumstances. The Collector has taken the view that since the appellants were not availing of the set off procedure in terms of rescinded Notification No. 178/77 of 18-6-1977, the question of condoning the delay in terms of Para 2-A of Notification No. 201/79 of 4-6-1979 as inserted by Notification No. 5/81 dated 21-1-1981 did not arise. The appellants have argued that the view expressed by the Collector in his letter dated 19-9-82 and 6-1-83 that only those manufacturers who were availing of the set off procedure earlier can get the benefit of having the delay in applications condoned under Notification No. 5/81 dated 21-1-81 is not correct, as there is nothing in this Notification which would justify the Collector's view. The appellants have also relied on Trade Notice No. 32/81 dated 19-2-81 in support of their contention. The departmental representative has opposed the submissions of the appellants. He has pointed out that since the appellants were not availing of the procedure under Notification No. 201/79 dated 4-6-79, they would not have filed any D-3 declaration for the receipt of the duty paid goods in-their factory from 4-6-79 to 15-11-79 and therefore the Central Excise Officers would not have had the occasion to verify the receipt of the goods in the appellant's factory and the amount of duty thereon. They would not have also maintained the statutory records which would show the amount of duty paid on the inputs or the raw materials. The appellants, therefore, have no case for condonation of the delay in making the application in terms of Notification No. 201/79-CE dated 4-6-79 as amended by Notification No. 5/81 dated 21-1-91. He has also pointed out that the Collector did not have unlimited discretion to condone the delay. One of the conditions for condoning the delay was the lack of knowledge of manufacturer of the Notification. This condition is not fulfilled as it is admitted by the appellants that they were aware of the Notification but did not take the benefit of the same on account of cumbersome procedure. The appeal, is therefore not tenable and he has submitted that the same should be rejected.
3. Before we consider the submissions made by both the sides, the present matter calls for examination of an important issue. This is whether the present appeal purported to have been filed under Section 35-B(1)(a) of the Central Excises & Salt Act, 1944 is maintainable or otherwise. It is seen that under the aforesaid provisions of law, the appeal can be filed to the Tribunal against the decision or order passed by the Collector of Central Excise as an Adjudicating authority.
No doubt, the decisions contained in the letters dated 19-9-82 and 6-1-83 are passed by the Collector. But the crucial point to determine is whether these decisions are passed by the Collector as an adjudicating authority as provided in Section 35-B(1)(a) of the Central Excises & Salt Act, 1944. In this connection, it is pertinent to examine the provisions of Section 35 of the Central Excises & Salt Act, 1944 as they stood prior to bringing into existence Chapter IV-A of the Act with effect from 11-10-82. Under the old Section 35, the Collector's order need not have been passed in the capacity as an adjudicating authority, to enable the person, aggrieved by it, to appeal to the Central Board of Excise & Customs. This qualification has been brought into existence under Section 35-B with effect from 11-10-82. The amendment of the Central Excises & Salt Act inter alia includes the definition of "adjudicating authority" as inserted under Section 2(a) of the Central Excises and Salt Act, 1944. However, this definition is not very enlightening to determine as to what is actually implied by the definition of "adjudicating authority". To gauge the actual meaning of the term "adjudicating authority" we have to therefore gauge the other provisions of the Act.
4. The only section which deals with "adjudication" is Section 33 of the Act. It is therefore plausible that the legislature intended that only in respect of powers exercised by the Collector under Section 33 that the matter should be appealable to the Tribunal under Section 35-B(1)(a). This interpretation is warranted on the basis of the provisions of Section 35-E (2) of the Act. As per this Section the Collector of Central Excise can direct an authority subordinate to him to apply to the Collector (Appeals) against the order passed by his subordinate officer in the capacity of an adjudicating authority, to determine as to whether such order is legal or proper. It would thus imply that if the subordinate officer has acted in the executive capacity, Collector as a superior executive authority, has power to over-ride the subordinate officers decision. But where such decision is passed in the capacity of an adjudicating authority the Collector would have no competence to modify such decision and an application would lie to the Collector (Appeals) against such a decision. In other words, the law recognises that the Central Excise officers have a dual role to play viz. executive and quasi-judicial. In executive capacity, they are passing several decisions and orders and the Collector has competence to modify them. In case of quasi-judicial capacity, the orders and decisions passed by them cannot be modified by the Collector. It is seen that in cases covered by Section 33 of the Act, the Central Excise officers function in quasi-judicial capacity. It is in respect of these decisions that the Collector has no power to change the same. This analogy fortifies our interpretation of Section 35-B(1)(a) that the appeal to the Tribunal would lie only in those cases where the Collector has issued an order acting as per the provisions of Section 33. In other cases, it would be open to the aggrieved parties to seek relief from the higher executive authority of the Collector, viz., the Central Board of Excise & Customs. It is our experience that during the course of administering the provisions of Central Excises and Salt Act, 19H and the Rules made thereunder, the Central Excise Officers are called upon to take various decisions. It is intended that these decisions should not be the subject matter of judicial review by the Appellate Tribunal through the provisions of Section 35-B(1)(a). It appears that the legislature therefore deliberately avoided giving jurisdiction to the Tribunal in such matters lest the Tribunal should be flooded with appeals in such cases of administrative nature. In view of the aforesaid interpretation of law, we find that the present appeal is not maintainable, even though the Collector in his letter dated 6-1-83 has sought to vest us with the jurisdiction. Under the aforesaid circumstances, it is not necessary for us to go into the merits of the case and accordingly we dismiss the appeal for reasons discussed above.