1. This is a stay application under Rule 220-E of the Central Excise Rules, 1944 and relating to appeal dated 27-11-1982.
2. The Tribunal observed that this stay petition/appeal pertain to an order-in-original dated 24-9-1982 passed by the Additional Collector of Customs and Central Excise, Jaipur, under Rules 9(1) and 9(2) of the Central Excise Rules. The counsel stated that in one case an appeal against the order of the Additional Collector of Central Excise had been filed before the Appellate Collector, Delhi, who refused to entertain the appeal on the ground that the appeal lay to the Central Board of Excise and Customs and not to the Appellate Collector. Even the present order states in para 2 of the preamble that "any person deeming himself aggrieved by this order may appeal against it to the Central Board of Excise and Customs, New Delhi. The appeal must be filed within three months from the date of communication of this order, etc.". The Departmental Representative felt that the Additional Collector is a Collector, as in the case of Additional Collector of Customs, by virtue of Rule 2 (ii)(B) of the Central Excise Rules.
Hence, the Tribunal was competent, to decide this case.
3. The Tribunal observes that under the Customs Act, the word Collector of Customs has been denned in Section 2, Clause (2)(8) as "includes an Additional Collector of Customs". The powers of adjudication of the Collector and, therefore, of an Additional Collector are specified in Section 122(a) as without limit in regard to either value of goods to be confiscated or penalty to be adjudged. This is not the case under the Central Excise Act and Rules, as would be apparent from what is stated hereafter.
4. (1) 'Adjudicating authority" as defined in Section 2(a) of the Central Excise Act means, any authority competent to pass any decision or order under this Act, but does not include the Central Board of Excise and Customs, Collector (Appeals) or Appellate Tribunal.
(2) Section 33 confers powers of adjudication in respect of confiscations and penalties (a) without limit by a Collector of Central Excise, and (b) within prescribed limits by an Assistant Collector. It provides that the Central Board of Excise and Customs may reduce the limit in Clause (b) or confer on any officer the powers under Clause (a) or (b).
(3) "Collector" has been defined in Rule 2 Sub-rule (ii)A and (ii)B.Under the former, Collector is defined in relation to excisable goods other than salt and under (ii)B, the wording is "in relation to salt, the Salt Commissioner, and includes an Additional Collector and any officer specially authorised under Rule 4 or 5 to exercise throughout any state or any specified area therein all or any of the powers of a Collector under these rules".
(4) "Appellate Collector", under Rule 2(ii)(b) means, in relation to an order or decision of an officer of Central Excise subordinate to the Collector of Central Excise, Jaipur, the Appellate Collector of Central Excise, Delhi.
5. Administratively, the Additional Collector of Central Excise, Jaipur, is undoubtedly subordinate to the Collector of Central Excise, Jaipur. For purposes of the Central Excise Rules, however, he is a Collector. The question arises as to whether, for purposes of adjudication, he is a Collector within the scope of Section 33. For one thing, he does not have unlimited powers but reduced powers, to wit, cases not involving Central Excise duty of more than rupees one lakh.
For another, the definition in Clause (ii)(b) of Rule 2 of the Central Excise Rules, in relation to orders or decisions in adjudication, can only flow to the Additional Collector from the powers vetsed in the Board by virtue of the proviso to Section 33. This does not make him a Collector and he remains subordinate to the Collector for purposes of Rule 2(ii)(b) and an appeal against an order by the Additional Collector of Central Excise, Jaipur, would lie to the Appellate Collector, Delhi. This being so, the order is not one passed by a Collector as adjudicating authority mentioned in Section 35B(a), nor is it an appeal pending before the Board or the Central Government as provided in Section 35P. The Tribunal would not, therefore, be able to entertain this appeal and the proper forum is that of the Collector (Appeals), Delhi. As such no orders are possible on the stay application before us.
6. The Tribunal orders accordingly that the records be transferred to the Collector (Appeals), Delhi, for disposal.