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TMI Blog1987 (8) TMI 281X X X X Extracts X X X X X X X X Extracts X X X X ..... ctric fans. In August 1979 the appellants approached the Central Excise Department for availing proforma credit under Rule 56A in respect of duty paid electrical stampings and laminations used in the manufacture of stators and rotors and also for set-off of duty in respect of duty paid on stators and rotors used in fans and in that connection the appellants relied on the Notification No. 95/79, dated 1-3-1979 and the Notification No. 124/65, dated 14-8-1965. It appears the Asstt. Collector of Central Excise, Surat, by his order dated 23-1-1980 rejected both the request. Thereupon the appellants represented to the Collector of Central Excise. Subsequently the Asstt. Collector granted permission under Rule 56-A for the use of electrical stampings and laminations in the manufacture of stators and rotors, but he, however, refused to grant the permission under Rule 56A in respect of stators and rotors utilised in the manufacture of electrical fans and in this connection the Asstt. Collector placed reliance on the Notification No. 28/69. dated 1-3-1969., By their letter dated 21-5-1981 the appellants requested the Collector of Central Excise, Baroda, to permit them to utilise credit of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 80 as amended by Notification No.110 of 80, dated 1-8-19BO. clearly allow the benefit of proforma credit of duty paid on stators and rotors used in the manufacture of fans. Shri Kohli further submitted that the legal position with regard to the availment of proforma credit had been clarified by the Ministry vide its letter No. 182/1/-CX-4 dated 1-4-1984 addressed to all Collectors of Central Excise and this letter is binding on the department officers. (v) The further contention of Shri Kohli was that similar refund claims were allowed by the Appellate Collector in Appeal Nos A-2020/B II-235/82, dated 2-12-1984. Finally Shri Kohli submitted that 5 other appeals filed by the present appellant before the Central Board of Excise and Customs against the order of rejection of refund claims were allowed by the Central Board of Excise and Customs and the Board has found fault with the Asstt. Collector in relying on the Collector s order. The Board had observed that the claim ought to have considered by the Asstt. Collector on merits and ought to have disposed of on the basis of his own judgment: As the decision of the Asstt. Collector was based on the Collector s order and since the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of Assistant Collector. Shri Kohli contended that the Tribunal has Jurisdiction to transfer the appeal records to the Collector (Appeals). In that connection he placed reliance firstly on the order of this Bench in Geete Clearing Agency, Bombay v. Collector of Customs, Bombay, 1986 (26) E.L.T. 841 (Tribunal) and secondly on the judgment of the Supreme Court-in Civil Appeal No. 2223 of 77, Assam Co-operative Sugar Mills v. Central Board of Excise and Customs, New Delhi and Others. 6. The two questions that immediately arise for consideration in these appeals are: (a) Whether any appeal or revision lay to the Board against the order passed by the Asstt. Collector. (b) In the answer to the above question is in the negative, whether the Memorandum of Appeal should be returned to the appellants for presentation to the proper authority or the Tribunal has jurisdiction to make over the appeals, to the jurisdictional Collector (Appeals) who is the successor in office of the Appellate Collector. Question (a) Prior to the coming into force of the Finance Act, 1980 (Act No. 2 of 80) Section 128 as it then stood provided an appeal to the Board against the decision or order pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin the time limit and the appeals have been Inadvertently numbered by the registry and were kept pending in the Tribunal till day. In such a situation, justice and fair play demand the appeal to be made over to the appropriate and competent authority, viz.. Central Government for disposal according to law. For my part I am totally unable to appreciate as to what exactly the Tribunal means by saying that the appeals should be made over. 1 should think having regard to what has been said in the succeeding portion of the order, it means transfer, the Tribunal tried to draw inspiration from the procedure in the civil courts. In all cases in civil matters, when a suit or an appeal is filed in a wrong forum, what requires to be done is merely return of the papers to the party concerned, be he the plaintiff or the appellant, for proper presentation to the forum having jurisdiction; That is the only order that is possible. If that is the procedure with regard to ordinary forums, the Tribunal cannot clothe itself with higher powers of transfer. It should be remembered in this connection that the Tribunal itself is a creature of the statute. It derives it power only from the statute and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Excise and Customs decided to make over the appeal wrongly filed with the Collector of Central Excise, Shillong to the Appellate Collector of Central Excise, Calcutta, who was the appropriate authority . The learned author further observed on the same analogy if the appeal had been filed with the wrong authority but within time it should be made over to the appropriate authority and should be taken as having been filed within time even though appeal to appropriate authority is filed subsequently . 11. While considering the above contention this Bench observed the above passage undoubtedly supports the contention of Shri Majra. But then under the Civil Procedure Code, if a suit has been filed before a wrong Court, the plaint shall have to be returned to be presented to the Court in which the suit should have been instituted. If the Board had adopted the procedure provided under Order 11 Rule 10 of the Civil Procedure Code, then Board s action cannot be considered as improper or illegal. In the absence of a copy of the judgment of the Supreme Court, it would not be possible to hold that there is an obligation cost on the Board to forward the appeal records to the Tribunal s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court is binding on all Courts and other authorities under Article 141 of the Constitution. Even if the Customs Act or the Central Excise Act or the Rules made thereunder did not provide for making over or transfer of appeals filed before a wrong forum to a jurisdictional forum, such an order would not be illegal or without jurisdiction having regard to the judgment of the Supreme Court in the above referred appeal. 15. From the judgment of His Lordship Mr. Justice Mohan it is clear that by transfer the Tribunal had deprived the petitioner therein of the valuable plea of limitation. But then if an observations similar to the observation contained In the Supreme Court s order in Civil Appeal No. 2223 of 77 is to be made, that right will be taken care of. 16. Following the judgment of the Supreme Court In Civil Appeal No. 2223 77, we reject Shri Senthivel s contention that the only course open to the Tribunal was to return the appeal papers to the party. We hold that the Tribunal will not be committing any jurisdictional error if it makes over the appeal papers to the Collector of Customs (Appeals), Bombay who is the successor in office to the Appellate Collector subject of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een so the Supreme Court s order would have had the force of law. On the other hand, the judgment of the Hon ble Madras High Court in the case of M/s. India Pistons Ltd. brings out the various provisions of the Central Excises Salt Act as they now exist. These have been interpreted by the Hon ble Madras High Court and on the basis of the aforesaid interpretation, the appeal filed before the Tribunal erroneously has to be returnee to the party if the Tribunal is not competent to deal with it. This decision acts as a judicial precedent to the Tribunal and this is more appropriate to the facts of the present appeal rather than the Supreme Court s decision relied on by the learned representative of M/s . Ralli Machines Ltd. Following the ratio of the Madras High Court s decision in the case of M/s. India Piston Ltd. T987 (27) E.L.T. 651 and -for the reasons mentioned therein, I direct the Registry to return these appeals to M/s. Ralli Machines Ltd. 19. Since there has been a difference of opinion between the Member (J) and the Member (T), the records of these cases are submitted to the President in terms of Section 35-D of the Central Excises Salt Act read with Section 129-C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Salt Act also. 21. I have heard Shri D.R. Kohli, Consultant for the appellant and Smt. V. Zutshi, SDR for the respondent 22. Before I take up the arguments on the above-mentioned point of difference I shall dispose of two submissions of Shri Kohli. Shri Kohli submitted that the appellants had preferred 7 appeals to the Central Board of Excise and Customs against orders of the Assistant Collector concerned and that 5 of the said appeals were disposed of by the Central Board and it was the remaining two appeals that are the present proceedings and in the circumstances there is no question of transfer of these appeals and that these appeals are within the competence of the Tribunal and they should therefore be disposed of by the tribunal itself. It was pointed out to Shri Kohli that the present proceedings are restricted in scope, since I could go into the point of difference only and record my finding thereon and not role upon any other submissions, that have nothing to do with the point of difference. It was pointed out that both Members of the West Regional Bench were agreed that the appeals were not within the jurisdiction of the Tribunal. Thus there was no difference between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hence could not exercise any such power of transfer with reference to a proceeding pending before the Tribunal when it has been held that the Tribunal had no jurisdiction to deal with that matter. The Tribunal is a creature of the statute to which it owes its existence. Hence its powers can be traced only to the provision of the said statute or the rules that may be framed thereunder. Neither the Customs Act (under the provisions of which the Tribunal has been constituted) nor the Central Excise Act nor the rules framed under either Act contain any provision under which the Tribunal could exercise powers of transfer of proceedings from one authority to another. Shri Kohli refers to, and relies on, Rule 41 of the Customs, Excise and Gold (Control) Appellate Tribunal (Procedure) Rules, 1982 to contend that the power of transfer ought to be exercised under the said rule. The said rule reads as follows: 41. Orders and directions in certain cases:- The Tribunal may make such orders or give such directions as may be necessary or expedient to give-effect or in relation to its orders or to prevent abuse of its process or to secure the ends of justice. This rule has also been conside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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