1992 (12) TMI 131 - AT - Central Excise

Issues Involved:
1. Jurisdiction of the Tribunal to hear appeals against the Additional Collector's orders post-Notification 11/92-C.E.
2. Determination of the relevant date for appeal jurisdiction: date of passing the order vs. date of communication of the order.

Comprehensive, Issue-wise Detailed Analysis:

1. Jurisdiction of the Tribunal to Hear Appeals Post-Notification 11/92-C.E.
The primary issue was whether the Tribunal retained jurisdiction to hear appeals against orders passed by the Additional Collector of Central Excise after the enactment of Notification 11/92-C.E., dated 14-5-1992. The notification amended Rule 2(ii) of the Central Excise Rules, redefining the term "Collector" and excluding the Additional Collector from this definition for the purpose of appeals.

The Tribunal considered whether the appeal should be directed to the Collector (Appeals) instead of the Tribunal. The orders in question had two dates: the date the order was passed and the date it was issued. For instance, in the case of M/s. Pidilite Industry, the order was passed on 8-5-1992 but issued on 6-7-1992. Similarly, for M/s. J.K. Synthetics, the order was passed on 18-2-1992 but issued on 25-5-1992. Both issuance dates were after the notification date.

2. Relevant Date for Appeal Jurisdiction: Date of Passing vs. Date of Communication
The Tribunal examined whether the date of passing the order or the date of its communication to the affected party should determine the appropriate appellate forum. The appellants argued that the date of passing the order should be the criterion, supported by the Supreme Court decision in M/s. Bharat Barrel & Drum Mfg. Co. (Pvt.) Ltd. v. Employees State Insurance Corporation - AIR 1972 SC 1935, which stated that the right of appeal depends on the date of passing the order by the competent authority. They also referenced the Central Board of Excise & Customs Circular No. 3/92 CX 6, which clarified that appeals in respect of orders passed before 14-5-1992 would continue to lie to the Tribunal.

Conversely, the department argued that the date of issue should be the determining factor, citing the Tribunal's decision in Wood Paper Ltd. v. Collector of Central Excise - 1991 (56) E.L.T. 71 (Trib.), where it was held that a show cause notice is a nullity if it is issued after the competent authority's jurisdiction has changed.

Majority Decision:
The majority of the Tribunal members held that the relevant date for determining the appellate forum is the date the order was signed by the Additional Collector, not the date of communication. This conclusion was supported by the Bombay High Court decision in Cosmic Radio v. Union of India - 1983 (12) E.L.T. 84 (Bom.) and the Supreme Court decision in M.M. Rubber Co. - 1991 (55) E.L.T. 289 (SC), which clarified that an order becomes effective from the date it is signed.

The Tribunal concluded that since the orders were signed before 14-5-1992, when the Additional Collector was still considered a "Collector" for appeal purposes, the appeals should lie with the Tribunal despite being issued after the notification date.

Dissenting Opinion:
Member (Judicial) S.L. Peeran dissented, arguing that the notification had an immediate effect and thus changed the appellate forum for all orders communicated after its enactment. He emphasized that procedural changes affecting the appellate forum should be applied retrospectively, as they do not impair any vested rights but merely change the venue of the appeal.

Final Order:
In light of the majority view, the Tribunal held that the appeals in these cases would lie to the Tribunal. The Stay applications were directed to be listed before the respective Benches for further disposal.

Final Signatures:
- K.S. Venkataramani, Member (Technical)
- S.L. Peeran, Member (Judicial) [Dissenting]
- N.K. Bajpai, Member (Technical)

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