1986 (10) TMI 193 - AT - Central Excise

Issues Involved:
1. Jurisdiction and validity of the Assistant Collector's order dated 11-03-1983.
2. Finality of the order dated 17-05-1982.
3. Whether M/s. Orkay can contend the finality of the order dated 17-05-1982 without challenging the order dated 11-03-1983.
4. Reconsideration of the decision in Collector of Central Excise, Bombay-III v. M/s. Reliance Textiles Industries Pvt. Ltd. by a larger Bench.

Issue-wise Detailed Analysis:

1. Jurisdiction and Validity of the Assistant Collector's Order Dated 11-03-1983:
The Assistant Collector's order dated 11-03-1983, which withdrew the permission granted under Rule 56B, was challenged on the grounds of jurisdiction and validity. It was argued that the Assistant Collector lacked the jurisdiction to withdraw the permission once granted and that the withdrawal was done without providing an opportunity for a hearing, thus violating the principles of natural justice. However, it was determined that the order dated 11-03-1983 was not an adjudication or a decision as understood by law, but an administrative action. Therefore, the Assistant Collector had the discretionary power to withdraw the permission, and the order did not require a show cause notice or a hearing before being issued.

2. Finality of the Order Dated 17-05-1982:
The order dated 17-05-1982, which granted permission under Rule 56B, was argued to have become final since the Collector did not exercise the power of review under Section 35-E(2) of the Central Excise Act. However, it was concluded that the order dated 17-05-1982 was not an adjudication or a decision requiring review or appeal. The Assistant Collector's subsequent withdrawal of this order on 11-03-1983 meant that the original order no longer existed, and thus, the question of its finality did not arise.

3. Whether M/s. Orkay Can Contend the Finality of the Order Dated 17-05-1982 Without Challenging the Order Dated 11-03-1983:
M/s. Orkay did not challenge the order dated 11-03-1983 but instead requested the restoration of the Rule 56B facility. The Assistant Collector treated this as a fresh application and rejected it on 02-02-1984. M/s. Orkay challenged this rejection before the Collector (Appeals). It was determined that since the order dated 11-03-1983 was not challenged, the original order dated 17-05-1982 no longer existed. Therefore, M/s. Orkay could not contend the finality of the order dated 17-05-1982 without challenging the subsequent withdrawal order.

4. Reconsideration of the Decision in Collector of Central Excise, Bombay-III v. M/s. Reliance Textiles Industries Pvt. Ltd. by a Larger Bench:
The decision in the Reliance Textiles case, which held that POY is a finished product and not semi-finished, was argued to be reconsidered. The Tribunal reaffirmed that POY is a finished product based on its manufacturing process, marketability, and classification under the Central Excise Tariff. The Tribunal emphasized that the end use of POY does not determine its classification as semi-finished or finished. Rule 56B was interpreted to allow the removal of semi-finished goods for further processing to complete the product, but not for converting it into a different excisable commodity. The Tribunal found no reason to deviate from its earlier decision in the Reliance Textiles case and concluded that the matter did not require referral to a larger Bench.

Conclusion:
The appeal was allowed, and the order of the Collector (Appeals) was set aside. The Tribunal upheld that POY is a finished product and cannot be removed under Rule 56B for the purpose of texturisation. The Assistant Collector's withdrawal of the permission was within jurisdiction and valid, and the original order granting permission under Rule 56B did not attain finality.

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