9911796707
TMI Blog1989 (2) TMI 254X X X X Extracts X X X X X X X X Extracts X X X X ..... by the appellant in respect of duty paid inputs such as PVC contained in P.V.C. Compound, P.V.C. Compound, Stranded steel core and PVC Compound (Master Batch), found certain irregularities and passed an order dated 24-1-1987 under Rule 57-1 of the Rules directing the appellant to reverse a sum of Rs. 10,18,640.12 on the ground that wrong credit had been taken in regard to the same holding the credit was inadmissible. The appellant questioned the propriety of the said order of the Superintendent before the Assistant Collector of Central Excise, Trivandrum who on hearing the representation of the appellant, by order dated 28-7-1987 upheld the earlier order of the Superintendent referred to supra in part and directed the appellant to debit and reverse a sum of Rs. 4,44,974.20 in their R.G. 23A Pt. II in addition to a sum of Rs. 93,398.70 which the appellant had already reversed. In other words, the Assistant Collector by his order referred to above modified the order of the Superintendent of Central Excise and restricted the quantum of wrong credit taken by the appellant to the figures mentioned above. Aggrieved by this order of the Assistant Collector, the appellant preferred an appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant on opportunity of being heard, and, therefore, exercise of quasi-judicial power by an adjudicating authority without conforming to the principles of natural justice is untenable in law and consequentially, the order of the Superintendent of Central Excise is a nullity which can be questioned before his administrative superior viz. The Assistant Collector of Central Excise. (v) When the appellant questioned the correctness of the order of the Superintendent before the Assistant Collector of Central Excise, the Superintendent received the initial representation of the appellant and submitted the same with records to the jurisdiction of the Assistant Collector and therefore, the Assistant Collector of Central Excise, the Superintendent of Central Excise and the appellant all construed the original order of the Superintendent as only an administrative order or direction and did not construe the same to be an adjudication order in exercise of any quasi-judicial power. (vi) The Collector of Central Excise while holding that the impugned order of the Assistant Collector of Central Excise before him is without jurisdiction, cannot go behind the same and hold that the earlier or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ongly availed of or utilised in an irregular manner. If the credit of duty paid on inputs has been taken wrongly, the credit so taken maybe disallowed by the proper officer and the amount so disallowed shall be adjusted in the credit account or the account-current maintained by the manufacturer or if such adjustments are not possible for any reason, by cash recovery from the manufacturer of the said goods. In the present case, on scrutiny of the relevant records, the Superintendent of Central Excise by his order dated 24-1-1987 in exercise of his power under Rule 57-1 directed the appellant to reverse the credit in a particular sum in regard to which the appellant had been found to have availed wrong credit under the MODVAT Scheme. This power of the Superintendent is only a quasi-judicial power and by no stretch of imagination it can be construed to be a mere administrative direction. This order of the Superintendent being an order of adjudication in exercise of quasi-judicial power in terms of Rule 57-1 of the rules is an appealable order under the Act before the Collector (Appeals). Unfortunately, the appellant did not prefer any appeal against this order of the Superintend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 57-1(2) for which he is the competent authority and not the Superintendent of Central Excise. Once the issue before the lower appellate authority was with reference to the propriety of the order passed by the Assistant Collector, it is certainly open to the lower appellate authority to pronounce upon the question as to whether the impugned order of the Assistant Collector before him was competent or not and legally valid or otherwise. The plea of the learned Counsel that the Superintendent of Central Excise, the Assistant Collector and the appellant all construed the earliest order of the Superintendent of Central Excise as an administrative direction is neither here nor there and would not convert the nature of the order from that of a quasi-judicial order into one of administrative order. We are also not impressed with the plea of the learned Counsel that merely because the Superintendent of Central Excise passed an order without any notice to the appellant that would become questionable before the Assistant Collector who under the Act is not the appellate authority. If the order of Superintendent of Central Excise is violative of the principles of natural justice, the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merging with the order passed by the appellate authority not having jurisdiction would hardly arise. We also do not find any substance in the plea of the learned Counsel that by setting the order of the Assistant Collector and restoring the order of the Superintendent of Central Excise, the lower appellate authority has exceeded his limits and the same would result in enhancing the amount payable by the appellant which according to appellant is not permissible without notice to the appellant in terms of Section 35A(3) proviso of the Act. The lower appellate authority has not enhanced the quantum payable by the appellant under the impugned order. The lower appellate authority merely decided the issue before him as to whether the impugned order of the Assistant Collector before him was legally valid, competent and within jurisdiction, and gave a finding on consideration of the relevant materials that the order of the Assistant Collector impugned before him was without jurisdiction, incompetent and non est. In such a situation, it was indicated that consequentially it would follow that the order passed by the Superintendent in the context of the case would hold good. Therefore, the l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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