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TMI Blog1992 (3) TMI 203X X X X Extracts X X X X X X X X Extracts X X X X ..... at the appeal itself can be decided, since the issue involved does not call for any pre-deposit and this Bench may not be in a position to accede to the prayer, without going into the entire merits of the contentions raised in their appeal. Both the sides agreed to this suggestion and hence the appeal itself is taken up for disposal. At the outset, we pointed out to Shri Hidyattulla that this Bench consisting of myself and my learned brother Shri P.K. Desai, had expressed some opinion on this issue, in our Order No. 2027/90/WRB, dated 27-11-1990 and asked him whether he had any objection to the matter being heard by the same Bench, he submitted that these observations of this Bench were made in the passing and were not as a result of any conscious decision, based on the appreciation of all the arguments, which he would now advance. He indicated that he had no objection to the matter being heard by this Bench and was hopeful of convincing this Bench of their stand. 4. Thereupon, he argued on the appeal elaborately raising the following contentions : The main question involved in their appeal is whether the Collector, having issued the show cause notice under Section 11A, invokin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... docs not provide for rules of natural justice, they cannot be inducted in the proceedings. He also submitted that the Supreme Court have held in AIR 1960 (S.C.) 914 to the effect, where ordinarily in an enquiry before the domestic tribunals, the person accused conducts his own case, the plea of breach of natural justice on the ground of refusal for representation through a member of his Workers Union cannot be sustained. Hence, when there is no such practice of the Department being represented through an advocate in the adjudication proceedings, they cannot claim it on the ground of natural justice in this case. 5. Shri Mondal, the ld. SDR pleaded as below : He has a preliminary objection to the matter being treated as an appeal. The Collector has not passed any final order on the show cause notice issued for the demand of duty amounting to more than Rs. 3 crores. The appellants do not seem to be interested in getting the decision on the show cause notice for reasons best known to them. There is no order of the Collector, which can be appealed against. It is only a communication intimating that he has no objection to the investigating agency being represented through an advocat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned advocate. He also submitted that even the Government or its institutional agency can intervene in the matter on ground of public interest. Section 35Q provides for any person and does not confine to assessee only. (iii) On the citation made by the ld. advocate, he submitted that vide observations of the Tribunal [1991 (55) E.L.T. 68 (Tribunal) = 1992 (38) E.C.R. 587 (CEGAT, SRB)] they have rejected the contentions of the SDR to the effect that the department have been denied natural justice, holding that in the scheme of Sections 122 and 124 of the Customs Act, it is not contemplated that an opportunity is required to be provided to the Department. All the same, there is no law or specific section prohibiting the Department from being called upon to meet the defence pleadings and hence, where the Collector chooses to call upon the Department or to get the benefit of the Department s arguments on the issues raised by the defence, no objection can be taken. The Tribunal did not go into this specific aspect in that judgment. The other two citations of the Supreme Court are with regard to the rights of the effected workman charged or official retired compulsorily and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cate, we may observe that the Collector is the authority specified in the statute, who is competent to issue a S.C. Notice invoking the extended period of 5 years on the ground of suppression, willful misstatement etc. and to adjudicate on such a notice. Being a senior officer, appointed by the Government for the administration of excise law and for supervision over revenue collection for the Government, in the area of the Collectorate, he exercises this statutory power. All the same, the interested party in revenue collection can only be the Government of India in the Department of Revenue and not the Collector in his individual capacity. The Collector is only an officer appointed by the Government for discharging the functions statutorily assigned to him. It is not disputed that proceedings under Section 11A are quasi-judicial and while exercising this power, the Collector is to act as a judicial officer and not as an administrative authority. Neither the Government nor the Board can give any executive directions to the Collector to exercise this quasi-judicial function in a particular manner based on its own interpretation of the tariff or of the provisions of law. The entire pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that case, the Department, at the appeal stage, made a grievance that the Department was not given an opportunity during adjudication proceedings and hence it amounted to violation of principles of natural justice. This contention raised at the appeal stage was rightly rejected by the Tribunal holding that Section 122 and Section 124 of the Customs Act do not specifically provide for such an opportunity being extended to the Department. But we are here, on the question namely when such a request for representation is made by the Department or by the investigating agency before the adjudicating authority, can he refuse it on the ground that it is not provided for? On this, the observations of the Supreme Court extracted above leave no scope for doubt as to the discretion vested with the authority for allowing such request. Hence, we hold that in the lis between the Department and the assessee, if the Department wants to be represented it is open to the discretion of the adjudicating authority to allow this request or not. 9. We also viewed this issue from a different angle, taking note of the other plea. It is pleaded before us that the Collector is both an adjudicator and pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lector (Appeals) or the Appellate Tribunal and restricted to appeal proceedings . Such a restrictive meaning of Section 35Q cannot be given, merely because of its placement in the chapter relating to appeal. 12. Another argument of the ld. Counsel is that only in the appeal proceedings before the Collector (Appeals) or the Tribunal, the Department can be an appellant or a respondent, as the case may be, where representatives are called for before the appellate authority and hence Section 35Q is to be read as only confining to Appeal proceedings. As against this, we may observe that it is a settled law that appeal proceedings are continuance of the original proceedings. Hence, unless the Department is a party to the original proceedings, the Department can not just come out of the blues as an appellant or respondent, only in the appeal proceedings. 13. We also, on our own, went through some judicial pronouncements on the powers of the authorities, in the adjudication matters. Madras High Court in the case of Asia Tobacco - 1988 (33) E.L.T. 279 (Mad.) have observed that Section 11A, particularly the proviso thereto takes care of the power to be exercised to recover excise duty i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oposed by my learned brother Shri R. Jayaraman, Member (T). While concurring with the final conclusion drawn, I am of the view that the point at issue here, could also be viewed from slightly different angle, and to project the same, I record my separate order. 17. The main issue raised before us is, whether, in the proceedings initiated for recovery of excise duty, and/or ordering confiscation of goods and/or imposition of personal penalties, under the provisions of Central Excises and Salt Act, 1944, or the Rules framed thereunder, the Excise Department could or could not be represented by a lawyer, at the stage, when the officer, duly empowered under Section 33 of CESA, 1944 conducts the adjudication proceedings. 18. Considering various provisions of the Act, as also Rules framed thereunder and also going through various other Rules for collateral purposes, there appears no specific Rules framed for conduct of adjudication proceedings, though rules for the purpose of conduct of appeal proceedings exist. If some administrative instructions are given, they have been not made available to us during the course of arguments. 19. The crux of the submissions made by the ld. Senio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te, obviously fall within the definition of the word Central Excise Officer . 21. For the purpose of convenience, clubbing the other grounds raised, the contention raised is that because the authority adjudicating being the same as the authority issuing the Show Cause Notice, the same authority works in a dual capacity and virtually both are synonymous of each other. If the submission so made has to be accepted, one has to search for some other objective in enacting the provisions of Section 35E of the Act, which, in effect provide for filing of the appeal by the department against the orders, passed by various adjudicating authorities. The appeal to be filed thereunder, has even not been restricted only to the issue of law, and as such finding on the factual aspect too, can be appealed against. This position therefore, appears to be contra-indicative of the plea that the adjudicating authority has to perform dual function, and there is an identity of interest, and that the prosecuting agency itself acts as the adjudicating. authority. Here, however one cannot overlook the fact that ordinarily the adjudicating authority himself is the signatory to the Show Cause Notice, particul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of due adjudication, they could be refused audition. If that be so, the same could go contrary to the fundamental tenets of law, particularly when the adjudicating authority is empowered to adjudicate against the departmental case as put forward, and when the right to appeal against the same by the department is provided for in the statute itself. 24. Further, even if accepting that there is no specific provision for representation by the Department, at the adjudication stage, there is also no specific bar imposed against the same. It is true that if specific obligation is not cast on the adjudicating authority to call upon the department to appear and represent, then plea of non-compliance of principles of natural justice may not be entertained, and that appears to be the ratio of two judgments of the Supreme Court referred to by the ld. Sr. Counsel, but neither of them indicate that in absence of any specific provision, the department ought to be debarred from appearing and pleading the case, when they specifically choose to do so. 25. It could be argued that if that be so, why does the department not depute an officer to represent in all the adjudication proceedings. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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