1993 (6) TMI 169 - AT - Central Excise

Summary

Issues Involved:
1. Whether the order directing the Assistant Collector to file an appeal before the Collector (Appeals), passed by the Collector of Central Excise under Section 35E(2) of the Central Excise Act, is an adjudication order.
2. Whether such an order is an administrative order or a quasi-judicial order.
3. Whether the Collector of Central Excise should observe the principles of natural justice before passing an order under Section 35E(2).
4. Whether the decision of the Apex Court in AIR 1965 SC 1767 is applicable in this case.

Detailed Analysis:

Issue 1: Whether the order directing the Assistant Collector to file an appeal before the Collector (Appeals), passed by the Collector of Central Excise under Section 35E(2) of the Central Excise Act, is an adjudication order.

The Tribunal examined the provisions of Section 35B, which outlines the types of decisions or orders that can be appealed before the Tribunal. Specifically, the Tribunal considered whether the orders passed by the Collector under Section 35E(2) qualify as adjudication orders. The Tribunal noted that "adjudication" involves judicial determination, pronouncing judgment, or awarding decisions that affect the rights of parties. The Tribunal concluded that the order under Section 35E(2) does not determine any issues or rights but merely directs the filing of an appeal. Therefore, it is not an adjudication order.

Issue 2: Whether such an order is an administrative order or a quasi-judicial order.

The Tribunal referred to the definitions and distinctions between administrative and judicial orders. An administrative order does not decide the rights of parties or confer or refuse rights to property. The Tribunal found that the Collector's order under Section 35E(2) is purely administrative, as it does not determine any issues affecting the rights of the parties but merely directs an appeal to be filed. The Tribunal emphasized that the actual adjudication of issues is done by the Collector (Appeals), not the Collector who issues the direction under Section 35E(2).

Issue 3: Whether the Collector of Central Excise should observe the principles of natural justice before passing an order under Section 35E(2).

The Tribunal considered whether the principles of natural justice apply to the Collector's order under Section 35E(2). The Tribunal noted that the Collector's order does not affect the rights of the parties directly and is only a direction for filing an appeal. The actual determination of issues and compliance with natural justice principles occur at the level of the Collector (Appeals). Therefore, the Tribunal concluded that the principles of natural justice do not need to be observed by the Collector when issuing a direction under Section 35E(2).

Issue 4: Whether the decision of the Apex Court in AIR 1965 SC 1767 is applicable in this case.

The Tribunal examined the Apex Court's decision in AIR 1965 SC 1767, which dealt with the applicability of natural justice principles in the context of revisional orders under the Uttar Pradesh (Temporary) Control of Rent and Eviction Act, 1947. The Tribunal found that the Apex Court's decision was distinguishable because it involved a scheme where the revisional authority's order affected the statutory rights of tenants. In contrast, the Collector's order under Section 35E(2) does not affect the rights of the parties but merely directs an appeal. Therefore, the Tribunal concluded that the Apex Court's decision does not apply to this case.

Conclusion:

The Tribunal concluded that the orders passed by the Collector under Section 35E(2) are not adjudication orders but administrative directions. Consequently, these orders are not appealable before the Tribunal under Section 35B of the Central Excise Act. The Tribunal dismissed the appeals as not maintainable and noted that the appellants could present their case before the Collector (Appeals) in their cross-objections.