1989 (9) TMI 210 - AT - Central Excise

Summary

Issues:
- Maintainability of the appeal based on objection raised by the respondents regarding the examination of the legality and propriety of the order by the Collector in his capacity as a Member of the Central Board of Excise and Customs.

Detailed Analysis:
1. The appeal arose from an Order-in-Revision passed by the Collector of Central Excise, Calcutta, which permitted duty exemption to the respondents for electricity generated by their captive power plant. The Collector later examined the legality of his own order and issued a notice to the respondents under Section 35A(2) of the Central Excises and Salt Act. Subsequently, the Collector upheld the Assistant Collector's order. The Central Board of Excise and Customs directed the Collector to apply to the Tribunal for determination of certain points arising from the order.

2. The respondents objected to the maintainability of the appeal, arguing that the Collector, who initially passed the Order-in-Revision, could not review his own decision as a Member of the Board. The Departmental Representative contended that the Collector, in his role as a Board Member, was not re-evaluating his previous decision but was examining the order's validity based on the Board's directive. The key contention was whether the appeal was maintainable under Section 35E(1) of the Act.

3. Section 35E(1) empowers the Board to review decisions made by Collectors and direct them to apply to the Tribunal for specific determinations. The Tribunal opined that the Board, acting as a superior authority, should not allow a Collector to review his own orders without new facts or material warranting such a review. The Tribunal found that the Board's order did not present any new facts but relied on a different interpretation of existing information, leading to the conclusion that the Board's directive for the appeal was not appropriate.

4. The Tribunal held that the Collector, in his capacity as a Member of the Board, should not have examined the legality and propriety of his own order without substantial new evidence. As a result, the Tribunal deemed the Board's order and the subsequent appeal application as improper and dismissed the appeal on the grounds of maintainability.