1990 (11) TMI 163 - HC - Central Excise

Issues Involved:
1. Jurisdiction of the Additional Collector of Central Excise.
2. Constitutional validity of Sections 33 and 35F of the Central Excises and Salt Act, 1944.
3. Validity of Rules 4 and 5 of the Central Excise Rules, 1944.
4. Exigibility of goods to excise duty.
5. Inclusion of additional fittings in the cost of trailers for excise duty purposes.

Detailed Analysis:

1. Jurisdiction of the Additional Collector of Central Excise:

The petitioners challenged the jurisdiction of the Additional Collector to issue notices and pass orders under Section 11A of the Central Excises and Salt Act, 1944. The court examined the definition of "Collector" under Rule 2(ii) of the Central Excise Rules, which includes an Additional Collector. The court held that the Additional Collector is deemed to be a Collector by virtue of the definition in the Rules and may exercise the powers of a Collector. This interpretation was supported by the Division Bench of the Madras High Court in the case of Asia Tobacco Co. Ltd. v. Union of India and Another. The court concluded that the impugned orders were passed by an authority with competent jurisdiction and did not suffer from want of jurisdiction.

2. Constitutional Validity of Sections 33 and 35F of the Act:

The petitioners contended that Section 33 of the Act was unconstitutional. The court referred to its previous decision in W.P. No. 5892/1986, where it had held that there was no infirmity rendering Section 33 unconstitutional. Regarding Section 35F, Mr. Narayana did not press the issue during arguments. The court reaffirmed the constitutionality of Section 33 and did not find any grounds to declare it unconstitutional.

3. Validity of Rules 4 and 5 of the Central Excise Rules:

The petitioners argued that Rules 4 and 5 of the Central Excise Rules were ultra vires the provisions of the Act and unconstitutional. Rule 4 allows the Central Board of Excise and Customs to appoint Central Excise Officers and confer powers on them. Rule 5 permits the Collector to delegate his powers to subordinate officers. The court found that these rules were necessary for the effective implementation of the Act and did not constitute excessive delegation of authority. The court rejected the contention that these rules were unconstitutional or ultra vires.

4. Exigibility of Goods to Excise Duty:

The court did not delve into the specific facts regarding the exigibility of goods to excise duty, as these involved disputed facts best left to the appropriate appellate authority. The court noted that the petitioners had bypassed the statutory remedies available under the Act and directed them to file appeals before the Appellate Tribunal within 60 days. The Tribunal was instructed to consider the appeals as if filed within the prescribed time and examine the contentions on the exigibility of goods to tax and the quantum of penalties.

5. Inclusion of Additional Fittings in the Cost of Trailers:

The petitioner, Pramod Amberkar, contended that additional fittings secured from the open market and attached to trailers at the customer's request should not be included in the cost of the trailer for excise duty purposes. The court did not address this issue in detail, as it involved disputed facts. The court directed that this issue be considered by the Appellate Tribunal in the appeals to be filed by the petitioners.

Conclusion:

The petitions were dismissed concerning the jurisdiction of the Additional Collector and the constitutional validity of Sections 33, 35F, and Rules 4 and 5 of the Central Excise Rules. The court directed the petitioners to file appeals before the Appellate Tribunal within 60 days, where the issues of exigibility of goods to excise duty and the inclusion of additional fittings in the cost of trailers would be examined. The court emphasized that it could not decide questions of fact based on the material placed before it and left these to be addressed by the appropriate appellate authority.

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