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Collector of Central Excise Vs. Richardson and Cruddas Ltd. - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1985)(19)ELT117TriDel
AppellantCollector of Central Excise
RespondentRichardson and Cruddas Ltd.
Excerpt:
1. the appeal has been filed by the department (collector of central excise, madras) against the order of the central board of excise, new delhi, in order in-appeal no. 262 to 268 of 1982 dated 11-8-82. the respondents (m/s. richardson & cruddas ltd., madras) are licensees in respect of manufacturing of tariff item no. 29a. on 15-4-81, they were found manufacturing brine tanks with enclosure cabinets for refrigerating units. the refrigerating units were located in the adjoining premises. according to the department, the manufacturing operation brought into existence cabinets which are classifiable under tariff item 29a(3). as the respondents had not maintained any account for the production of these items, they were seized under the provisions of the central excise rules. a show.....
Judgment:
1. The appeal has been filed by the Department (Collector of Central Excise, Madras) against the order of the Central Board of Excise, New Delhi, in Order in-Appeal No. 262 to 268 of 1982 dated 11-8-82. The respondents (M/s. Richardson & Cruddas Ltd., Madras) are licensees in respect of manufacturing of Tariff Item No. 29A. On 15-4-81, they were found manufacturing brine tanks with enclosure cabinets for refrigerating units. The refrigerating units were located in the adjoining premises. According to the Department, the manufacturing operation brought into existence cabinets which are classifiable under Tariff Item 29A(3). As the respondents had not maintained any account for the production of these items, they were seized under the provisions of the Central Excise Rules. A show cause notice followed and the Collector of Central Excise, in his order dated 28-4-82, held that the "cabinets" manufactured by the respondents were parts of refrigerating and airconditioning appliances falling under Tariff Item 29A(3). The respondents filed an appeal to the Central Board of Excise & Customs, who held that the goods manufactured were neither parts of refrigerating appliances nor cabinets used in the refrigeration. This appeal has been filed challenging the order of the Board.

2. When the appeal was taken up, Shri M.A. Rangaswamy, Advocate, appearing for the respondents, raised a preliminary objection.

According to him, the Collector (Appellant) cannot be considered as "any person aggrieved" under Section 35B of the Central Excises and Salt Act, 1944. In support of his contention, he relied on the ruling reported in 1984 ECR 990 {Collector of Customs v. Narendra P. Umrao and Ors.). That was a decision under the Customs Act and a threeMember Tribunal had taken that decision who held that the expression "any person aggrieved" appearing in Sub-section (1) of Section 129A did not take within its ambit "the Revenue" or the Collector and "any person aggrieved" refers only to the assessee or other persons than "the Revenue". He stated that this ruling has been followed in another order of Bench C of the Tribunal, in Order No. 261/84-C dated 17-5-84 {Collector of Central Excise, Madras v. Pondichery Paper Mills).

3. Shri V. Lakshmi Kumaran, SDR, stated that the term "aggrieved person" would include the juristic "person", namely the Government. He relied on the ruling reported in 1978 E.L.T. 523 {Union of India v.Sham Lal Dey and Ors.). In that decision, it was held that the words "any person" would include any juristic "person" or artificial person.

According to Shri Lakshmi Kumaran, the ruling cited envisaged the possibility of the Department challenging the order afortiori. The present appeal would be maintainable.

4. The present appeal has been filed by the Collector against the orders of the Central Board of Excise. Prior to the amendment of the Central Excise Act, constituting the Appellate Tribunal under the Finance (No. 2) Act, 1980, the position would have been different. But after the amendment, Section 35B enumerates the circumstances under which an appeal would lie to the Appellate Tribunal. Being a statutory provision, the Tribunal cannot entertain any appeal beyond the ambit prescribed under Section 35B. Under that Section, provision has been made for appeal against the orders passed by the Collector of Central.

Excise as adjudicating authority, orders passed by the Collector (Appeals) in the appeals filed before him, order passed by the Central Board of Excise and Customs or the Appellate Collector, as it stood before the appointed day, and orders passed by the Board under Section 35A. The provision also envisages the Collector of Centeral Excise preferring an appeal to the Tribunal against the orders passed by the Appellate Collector of Central Excise in certain circumstances. It is significant to note that the provision does not contemplate the Collector filing an appeal against the orders of the Board of Revenue.

As stated in 1984 ECR 990, such a contingency would "not only lead to indiscipline but will have the effect of nullifying the constitutional provisions." The above ruling categorically holds that in the absence of any rule or authority, authorising the Collector to take a decision to prefer appeals against the orders passed by the Board, we have no hesitation in holding that the Collector of Central Excise will have no locus standi to prefer the appeals. The ruling cited in 1978 E.L.T. 523 has no application to the present facts because the scheme regarding the preferring of appeals was totally different at that time. Further that was a case when the Government sought to file an application in revision to set aside the decision passed in a criminal trial. In the course of the observations, the High Court has pointed out that the Department had not challenged an earlier finding of the Customs Department. So we do not agree that the decision would apply to the facts of the present case. The ruling reported in 1984 ECR 990 has considered the effect of the present provisions and we are in respectful agreement with it. We therefore, hold that the present appeal is not maintainable and the preliminary objection raised regarding the maintainability is upheld. The appeal is, therefore, dismissed as not maintainable.


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