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Bhushan Industrial Co. (P) Ltd. Vs. Collector of Central Excise - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1984)(18)ELT538TriDel
AppellantBhushan Industrial Co. (P) Ltd.
RespondentCollector of Central Excise
Excerpt:
.....to shri beri that there is no provision in the act for appeals being filed to the tribunal against orders passed on applications under section 35f of the act, moved before the collector (appeals), and as such present appeal has to be held to be non-maintainable.3. shri beri addressed arguments in detail resisting both the preliminary objections, urging that what the appellants have been conveyed, after moving an application under section 35f of the act before the collector (appeals), was superintendent's letter intimating their application had been rejected and since they have not been communicated any other order, this has to be treated as an appealable order, so far as the appellants are concerned.4. he then, argued that this tribunal is vested with ample incidental or ancillary powers.....
Judgment:
1. This appeal is directed against, what purports to be an order passed by Collector (Appeals) on an application having been moved by the appellants herein, under Section 35F of the Central Excises and Salt Act, 1944 (hereinafter referred to as the Act). On an appeal having been filed before the Collector (Appeals) against the order of the Assistant Collector, an application by means of a letter dated 26 12 1983 seems to have been moved by the appellants. A letter, bearing the date 3-2-1984, was addressed to the appellants by Superintendent (Appeals) intimating that:- "After due consideration, grant of stay has been rejected. You are requested to deposit the amount immediately. Deposit particulars may be intimated enabling the appeal to be entertained and P.H. fixed." 2. Treating this to be an order of Collector (Appeals), the appellants have filed the instant appeal before the Tribunal. On the same being taken up for hearing, Shri C.L. Beri, Advocate appeared for the appellants whereas the Department was represented by Shri K.D. Tayal, SDR. At the outset, it was pointed out to Shri Beri that there were two hurdles in the way of the appellants for the appeal to be entertained or admitted; they being-, (1) what has been filed as an order before us against which appellants feel aggrieved is not an order passed by the Collector (Appeals) himself but only a communication addressed to the appellants by the concerned Superintendent on the basis of an order which might presumably have been passed by the Collector (Appeals) and that in our view, an appeal against Superintendent's letter would not lie to the Tribunal under the provisions of Section 35 B of the Act.

(2) It was further pointed out to Shri Beri that there is no provision in the Act for appeals being filed to the Tribunal against orders passed on applications under Section 35F of the Act, moved before the Collector (Appeals), and as such present appeal has to be held to be non-maintainable.

3. Shri Beri addressed arguments in detail resisting both the preliminary objections, urging that what the appellants have been conveyed, after moving an application under Section 35F of the Act before the Collector (Appeals), was Superintendent's letter intimating their application had been rejected and since they have not been communicated any other order, this has to be treated as an appealable order, so far as the appellants are concerned.

4. He then, argued that this Tribunal is vested with ample incidental or ancillary powers to grant relief in situations such as the present, and that this power has to be deemed to be implicit in the provisions of the Act. The learned counsel further argued that even otherwise the order passed under Section 35F of the Act will come within the ambit of orders contemplated by Section 35B because any order passed during proceedings in an appeal filed before the Collector (Appeals) will, have to be taken as an order passed under Section 35A of the Act. He cited AIR 1969 SC 430 (Income-tax Officer, Connanore v. M.K. Mohammed Kunhi) to press his point as to vesting of incidental and ancillary powers in the Tribunal and further made reference to a judgment of Calcutta High Court reported as 1975 Taxation Law Reports 1351 (M.S'.

Naina, v. Collector of Customs, West Bengal and Ors.) on the points that the expression "any decision or order" under the Customs Act, 1962 as referred in Section 128 of the said Act was wide enough to include interlocutory orders passed in the course of an adjudication proceeding. He also placed reliance on another Supreme Court Judgment reported as AIR 1964 SC 497 (Major S S. Khanna v. Brig. F.J. Dhillon) laying down that the term "any case" was a term of comprehensive import, and was not restricted by anything contained in Section 115 of the Civil Procedure Code, further laying down that expression "case" did not mean entire proceeding only, and not a part thereof. Shri Beri stressed on the basis of these authorities that an application under Section 35F of the Act filed during the pendency of the appeal before the Collector (Appeals) and any order passed thereon, would be tantamount to an order passed under Section 35A of the Act and as such appeal against such an order would lie to the Tribunal.

5. Shri Tayal controverted the arguments advanced by the learned counsel by contending that Section 35A of the Act contemplates only final order in the appeal and that the Act nowhere provides for appeals to the Tribunal in respect to the orders passed on an application under Section 35F of the Act, by the Collector (Appeals) and as such the present appeal is not maintainable. He also urged that the order which had been made basis for this appeal, was in the form of a letter of the Superintendent, and could not be treated as an order passed by the Collector (Appeals), and as such the appeal in respect to said communication could not be entertained.

6. We have given our very careful thought to the issue, thrown up for consideration by this appeal, and we are constrained to hold that the Act does not provide for any appeal, against an order, which might be passed on an application moved under Section 35F of the Act before the Collector (Appeals). A cumulative reading of the provisions of Sections 35A and 35B of the Act makes the intention of the Legislature abundantly manifest. We reproduce below the relevant provisions to bring the position in proper perspective: "Sec 35A. Procedure in appeal.-(1) The Collector (Appeals) shall give an opportunity to the appellant to be heard, if he so desires.

(2) The Collector (Appeals) may at the hearing of an appeal allow an appellant to go into any ground of appeal not specified in the grounds of appeal, if the Collector (Appeals) is satisfied that the omission of that ground from the grounds of appeal was not wilfull or unreasonable.

(3) 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 direction as he may think fit for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary : Provided further that where the Collector (Appeals) is of opinion that any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, no order requiring the appellant to pay any duty not levied or paid, short-levied or short-paid or erroneously refunded shall be passed unless the appellant is given notice within the time limit specified in Section 11-A to show cause against the proposed order.

(4) 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.

(5) On the disposal of the appeal, the Collector (Appeals) shall communicate the order passed by him to the appellant, the adjudicating authority and the Collector of Central Excise.

Section 35-B. 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; (c) an order passed by the Central Board of Excise and Customs constituted under the Central Board of Revenue Act, 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 35-A, as it stood immediately before that day: Provided that the Appellate Tribunal may, in its discretion, refuse to admit as 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 or fine or penalty determined by such order, does not exceed ten thousand rupees.

7. The whole tenor of the wording of Section 35A as set out above leads to the unmistakable inference that what is contemplated therein is the final disposal of the appeal (emphasis ours). It is further to be observed from the provisions of Section 35B(1)(b) that appeals to this Tribunal so far as orders of the Collector (Appeals) are concerned, are specifically restricted to orders passed under Section 35A of the Act.

We are unable to read into this provision any such construction, express or implied, which can support the contention of the appellants that these provisions encompass orders passed with reference to applications under Section 35F of the Act. A reading of Section 35F suggests that dispensation with requirement of pre-deposit, pending disposal of the appeal, has been left to the discretion of the Collector (Appeals) or the Appellate Tribunal, as the case may be. No provision had been made for redress to the party, in the event of refusal to grant relief sought by means of an application under Section 35F of the Act, by the Collector (Appeals).

8. Judgment of the Calcutta High Court cited by the learned counsel (supra) with reference to provisions of Section 128 of the Customs Act, 1962 is entirely distinguishable because the said Section provided for appeals against "any decision or order passed under this Act" in contrast whereof the provisions of Section 35B(1) (b) are unequivocally restrictive, and confine appeals, only to orders passed under Section 35A of the Act, which in term contemplates only orders finally disposing of appeals. Howsoever liberal a construction may be put, it cannot be conceivably urged that orders passed on applications under Section 35F of the Act can be termed as order under Section 35A of the Act For the same reason, the authorities of the Supreme Court cited by the learned counsel referred to above, with all respects, do not apply to the issue before us because the provisions of Section 35B of the Act are wholly restricted to orders passed under Section 35A of the Act, and do not leave any scope to, introduce the concept of 'incidental' or 'ancillary' powers, or that of "step in the proceedings", and legislative intent seems to be clear to exclude entertaining of appeals by the Tribunal, against such type of interim or interlocutory orders.

9. We are, therefore, constrained to hold that the appeal is not maintainable. In the view we have taken, we do not think that the order issue, namely, as to whether the order which has been made the basis of the present appeal is appealable or not does not survive, though we would like to place on record our reservations in this regard and also unhappiness over the manner in which Collector (Appeals) has proceeded with the matter, in not seeming to have given any hearing to the party on their application nor supplying them a proper order, passed by himself. We hope that these observations will be kept in view by the Collector (Appeals) in dealing with matters such as this. In face of the view, we have taken on the main issue, as to non-maintainably of the appeal, the same is dismissed.


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