1988 (8) TMI 100 - HC - Central Excise

Appeal against the order of Additional Collector of Central Excise lies to Appellate Tribunal

Summary

Issues Involved:
1. Jurisdiction of the Collector (Appeals) to entertain the appeal.
2. Rank equivalence between the Additional Collector and the Collector of Central Excise.
3. Applicability of Section 35 and Section 35B of the Central Excises and Salt Act, 1944.
4. Interpretation of the term "Collector" under the Central Excise Rules, 1944.
5. Validity of prior decisions by CEGAT regarding the rank of Additional Collector.

Analysis:

1. Jurisdiction of the Collector (Appeals) to entertain the appeal:
The writ application challenges an order dated 12th February 1985, by the Collector (Appeals), which held that the appeal against the Additional Collector of Central Excise's order should be decided by the Central Excise and Gold (Control) Appellate Tribunal (CEGAT). The Collector (Appeals) concluded that he had no jurisdiction to entertain the appeal under the law.

2. Rank equivalence between the Additional Collector and the Collector of Central Excise:
The core legal question was whether the Additional Collector of Central Excise is lower in rank compared to the Collector of Central Excise. The judgment concluded that the Additional Collector is not lower in rank to the Collector of Central Excise. Therefore, appeals against orders passed by the Additional Collector should be directed to the Appellate Tribunal, not the Collector (Appeals).

3. Applicability of Section 35 and Section 35B of the Central Excises and Salt Act, 1944:
Under Section 35 of the Act, appeals lie to the Collector of Central Excise if the order is passed by an officer lower in rank than the Collector. Conversely, under Section 35B, appeals against the decisions of the Collector as an adjudicating authority lie with the Appellate Tribunal. Since the Additional Collector is equivalent in rank to the Collector, the appeal should be filed under Section 35B.

4. Interpretation of the term "Collector" under the Central Excise Rules, 1944:
The term "Collector" as defined in Rule 2(ii) of the Central Excise Rules includes the Additional Collector. The judgment clarified that the words "and includes an Additional Collector" apply to both categories (A) and (B) in the definition, thus covering both excisable goods other than salt and those relating to salt. This broad definition supports the conclusion that the Additional Collector holds the same rank as the Collector.

5. Validity of prior decisions by CEGAT regarding the rank of Additional Collector:
The judgment addressed prior decisions by the CEGAT, notably the cases of Khatri Bidi Works Beaware v. Collector of Central Excise and S. Kumar and Others v. Collector of Central Excise. The court found these decisions to be erroneous, as they misinterpreted the definition of "Collector" and incorrectly concluded that the Additional Collector was subordinate to the Collector. The current judgment upheld the determination by the CEGAT, East Regional Bench, Calcutta, that the Additional Collector is equivalent to the Collector.

Conclusion:
The High Court dismissed the writ petition, affirming that the appeal against the order of the Additional Collector should be filed with the Special Bench of the CEGAT, New Delhi, not the Collector (Appeals). The judgment clarified that the Additional Collector of Central Excise is equivalent in rank to the Collector, and thus, appeals against their orders fall under Section 35B of the Central Excises and Salt Act, 1944. The court also refuted prior CEGAT decisions that misinterpreted the rank and authority of the Additional Collector.