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Madras Refineries Ltd. Vs. Collector of Central Excise - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Delhi
Decided On
Reported in(1985)(5)LC1943Tri(Delhi)
AppellantMadras Refineries Ltd.
RespondentCollector of Central Excise
Excerpt:
.....as follows- "section 35b-(1) any person aggrieved by any of the following orders may appeal to the appellate tribunal against such order- 5. but then section 35b was amended by the finance act, 1984. by the amendment, a proviso reading as under was added- "provided that no appeal shall lie to the appellate tribunal and the appellate tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in clause (b) if such order relates to,- (a) a case of loss of goods, where the loss occurs in transit from a factory to a warehouse or to another factory, or from one warehouse to another, or during the course of processing of the goods in a warehouse or in storage, whether in a factory or in a warehouse;" "(1a) every appeal against any order of the nature referred.....
Judgment:
1.The short point for consideration in these matters is as to whether the Tribunal has jurisdiction to hear and decide them and if so in a Special Bench or the concerned Regional Bench.

2. The matters arise out of revision petitions filed before the Central Government.

3. By virtue of the provisions contained in Section 35-P (2), the proceedings were transferred to the Tribunal to be heard as if they were appeals, from the stage at which they were.

4. The provision relating to an appeal before the Tribunal on its constitution in Section 35-B read as follows- "Section 35B-(1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order- 5. But then Section 35B was amended by the Finance Act, 1984. By the amendment, a proviso reading as under was added- "Provided that no appeal shall lie to the Appellate Tribunal and the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order referred to in Clause (b) if such order relates to,- (a) a case of loss of goods, where the loss occurs in transit from a factory to a warehouse or to another factory, or from one warehouse to another, or during the course of processing of the goods in a warehouse or in storage, whether in a factory or in a warehouse;" "(1A) Every appeal against any order of the nature referred to in the first proviso to Sub-section (1), which is pending immediately before the commencement of Section 47 of the, Finance Act, 1984, before the Appellate Tribunal and any matter arising out of, or connected with, such appeal and which is so pending shall stand transferred on such commencement to the Central Government, and the Central Government shall deal with such appeal or matter under Section 35EE as if such appeal or matter were an application or a matter arising out of an application made to it under that Section." 6. Admittedly, the instant case is one relating to loss of goods in transit. Even so, it was urged before us by the learned Representative for the Revenue that the Tribunal continues to have jurisdiction in the matter, inasmuch as, what were excluded from the jurisdiction of the Tribunal were only the orders referred to in Clause (b) of Section 35(B)-namely, an order passed by the Collector (Appeals) under Section 35(A) and not orders made by the Appellate Collector in Appeal.

7. This may be so. But it cannot be overlooked that Section 35(B) relates to appeals to be filed before the Tribunal after it was constituted. It speaks of the classes of cases where a person aggrieved has a right of appeal to the Tribunal. While it may be that, the Finance Act, 1984, excludes from the jurisdiction of the Tribunal, appeals from the orders of the Collector (Appeals) in certain classes of cases (and not appeals from the orders of the Appellate Collector) and provides further in Sub-section (1-A) for the transfer of all such appeals pending in the Tribunal to the Central Government, [every appeal against any order of the nature referred to in the first proviso to Sub-section (1)] what is of significance is, that the instant cases are not appeals filed before the Tribunal by a person aggrieved, in terms of Section 35(B) (b), against orders passed by either the Collector (Appeals) or the Appellate Collector. On the contrary, it is proceeding pending before the Central Govt. and transferred to the Tribunal pursuant to Section 35-P(2) on its constitution to be heard as if they were appeals filed before the Tribunal in terms of Section 35B but, by a legal fiction, they are to be heard as if they were appeals filed before it from the stage at which they were.

8. Section 35-P itself was not amended by the Finance Act, 1984, with the result that proceedings transferred pursuant thereto are not touched by it, regardless of whether they were proceedings initiated to revise the orders of the Appellate Collector even in the classes of cases adverted to in the amendments made to Section 35(B).

9. In the result, we hold that the Tribunal continues to have the requisite jurisdiction in the matters transferred to the Tribunal to be heard as if they were Appeals in terms of Section 35P even in those classes of cases where the jurisdiction of the Tribunal was excluded pursuant to the amendments made in Section 35B by the Finance Act, 1984.

10. Since, however, the matters do not involve a determination of any question having a relation to the rate of duty of excise or the value of goods for purposes of assessment, a Regional Bench, in this case the South Regional Bench, can hear and decide these matters.

11. Accordingly, they may be transferred to the South Regional Bench for disposal.


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