1988 (6) TMI 159 - AT - Central Excise

Summary

Issues:
1. Appealability of the order of the original authority under the Central Excises and Salt Act, 1944.

Analysis:
The appeal before the Appellate Tribunal CEGAT, Calcutta was filed by the Collector of Central Excise, Patna, challenging the order of the Collector (Appeals), Central Excise, Calcutta, dated 9.12.1982. The main issue in this case was whether the order of the Assistant Collector of Central Excise, Patna, dated 16.10.1982, was appealable under the Central Excises and Salt Act, 1944, and the rules made thereunder. The respondent, a manufacturer of cigarettes, had filed a price list for approval under the Act, and the Assistant Collector granted provisional approval subject to the respondent furnishing security in specified forms. The respondent offered a bank guarantee as security, which was rejected by the department, leading to an appeal by the respondent before the Collector of Central Excise (Appeals), Calcutta, who allowed the appeal.

The department contended that the order of the Assistant Collector was not appealable as it was purely administrative and provisional in nature, not falling under the purview of Section 35 of the Act. On the other hand, the respondent argued that Section 35 provides a broad right of appeal against any decision or order passed under the Act, including interim or interlocutory orders. The respondent also cited trade notices permitting bank guarantees as acceptable forms of security.

The Tribunal analyzed the submissions and held that the order of the Assistant Collector was not appealable. The Tribunal noted that the provisional approval order was not complied with by the respondent, and the rejection of the bank guarantee did not make the order an adjudication order eligible for appeal under Section 35. The Tribunal rejected the argument that the department had not specifically pleaded the appealability of the original order, stating that the appeal's maintainability is a legal question that can be raised even without specific pleading.

Ultimately, the Tribunal set aside the Collector of Central Excise (Appeals) order, declaring it without jurisdiction and not sustainable in law. The Tribunal advised the respondent to seek redress by approaching the proper authority regarding the security issue. Additionally, the Tribunal mentioned another issue related to the excisability of certain goods, which was pending before a Special Bench following an appeal by the department.

In conclusion, the Tribunal ruled that the original order of the Assistant Collector was not appealable, leading to the allowance of the appeal by the Collector of Central Excise, Patna.