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Sunil Kumar Ghosh Vs. Collector of Central Excise and - Court Judgment

LegalCrystal Citation
CourtCustoms Excise and Service Tax Appellate Tribunal CESTAT Calcutta
Decided On
Reported in(1983)LC1441DTri(Kol.)kata
AppellantSunil Kumar Ghosh
RespondentCollector of Central Excise and
Excerpt:
.....arises out of and is directed against the order dated 6-9-1982 passed by the addl. collector of central excise and customs, west bengal, calcutta in order (original) no. l/gold/wb/82 on his file by which he ordered confiscation of 2 pcs. of primary gold weighing 263.500 gms., but, however, permitted redemption on payment of rs. 15,000/- as fine in lieu of confiscation and also imposed a penalty of rs. 3,000/- 2. as we are of the view that no appeal against a decision or order passed by the addl. collector of central excise lies to the tribunal, we do not propose to set out the facts of the case. we, however, made it clear to shri p.k. ghosh, consultant for the appellant and shri a.k.saha, sr. d.r. for the respondent that having regard to the decision of this bench in mfs. national.....
Judgment:
1. This appeal purported to be under Section 81 (amended) of the Gold Control Act, 1968 (hereinafter to be referred to as the 'Act'), arises out of and is directed against the order dated 6-9-1982 passed by the Addl. Collector of Central Excise and Customs, West Bengal, Calcutta in Order (Original) No. l/Gold/WB/82 on his file by which he ordered confiscation of 2 pcs. of primary gold weighing 263.500 gms., but, however, permitted redemption on payment of Rs. 15,000/- as fine in lieu of confiscation and also imposed a penalty of Rs. 3,000/- 2. As we are of the view that no appeal against a decision or order passed by the Addl. Collector of Central Excise lies to the Tribunal, we do not propose to set out the facts of the case. We, however, made it clear to Shri P.K. Ghosh, Consultant for the appellant and Shri A.K.Saha, Sr. D.R. for the respondent that having regard to the decision of this Bench in Mfs. National Jute Mfg. Corporation Ltd., Katihar and connected cases, the present appeal will not lie to this Bench.

3. The reasons for our view that an appeal against the decision or order passed by the Addl. Collector of Central Excise does not lie to the Appellate Tribunal are : (i) Section 80 (amended) of the Act reads : "Any person aggreived by any decision or order passed under this Act by a Gold Control Officer lower in rank than a Collector of Central Excise or of Customs may appeal to the Collector (Appeals) within three months from the date of communication to him of such decision or order;" (ii) Section 81(1) reads : "Appeal to the Appellate Tribunal".-(1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against suet order.

(a) a decision or order passed by the Collector of Central Excise or of Customs as an adjudicating authority; (c) an order passed by the Administrator, Collector of Central Excise or of Customs or the Appellate Collector of Customs under Section 80 as it stood immediately before the appointed day ; and (d) an order passed by the Administrator either before or after the appointed day under Section 81 as it stood immediately before that day;" From the plain reading of the two sections, it is clear that an appeal against any decision or order passed under the Act by a Gold Control Officer lower in rank than a Collector of Central Excise or of Customs will lie to the Collector (Appeals) and not to the Appellate Tribunal.

But against the order or decision passed by the Collector of Central Excise or of Customs as an adjudicating authority, appeal lies to the Appellate Tribunal. The point for our consideration is whether Addl.

Collector of Central Excise a Gold Control Officer is lower in rank than a Collector of Central Excise or not.

Section 78 of the Act which deals with the Adjudication reads : "Any confiscation may be adjudged or penalty may be imposed under this Act (a) without limit, by a Gold Control officer not below the rank of a Collector of Central Excise or of Customs; (b) subject to such limits as may be specified in this behalf, by such-other Gold Control officer, not below the rank of a Superintendent of Central Excise, as the Central Government may, by notification, authorise in this behalf." This section empowers the Collector of Central Excise or of Customs to adjudge any confiscation or impose any penalty without limit, but so far as other Gold Control Officers are concerned, they are not conferred with the unlimited power in the matter of adjudication, confiscation and imposition of penalty. Their limit shall have to be specified by the Central Government. In exercise of the power conferred by cl. (b) of Section 78, the Central Government issued a notification SC 985(E), dated 27-12-1980 as amended by Notification No. 3/81-GC, dated 1-8-1981 by which the Central Government empowered the Additional Collector of Customs and the Additional Collector of Central Excise to adjudicate, confiscate and impose penalty in matters where the value of gold liable for confiscation does not exceed Rs. 10,00,000/-. From the provisions of Section 78 and the notification issued by the Government of India, it is clear that the Additional Collector of Central Excise is an officer below the rank of a Collector of Central Excise under Section 80 (amended). Therefore, an appeal against an order or decision of the Gold Control Officer lower in rank than a Collector of Central Excise lies to the Collector (Appeals) and not to the Appellate Tribunal.

4. For the reasons set out above, we hold that this appeal does not lie to the Appellate Tribunal and, therefore, we direct that the appeal papers shall be returned to the appellant for being presented, if he so chooses, before the appropriate authority, i.e., the Collector (Appeals). The Collector (Appeals) shall, however, not reject the appeal on the ground of limitation if the appeal is presented within 15 (fifteen) days from the date of receipt of the appeal papers by the appellant on return of the papers by the Registry of this Tribunal.


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