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TMI Blog1992 (12) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... , the order is passed by the Additional Collector and in the order there are two dates. The date of the order is indicated as 8-5-1992 and the date of issue is indicated as 6-7-1992. Therefore, in this case, on the date of issue, the notification dated 14-5-1992, prescribing appeals from such orders to Collector (Appeals), had come into force. In the case of applicants, M/s. J.K. Synthetics, the Additional Collector s order again has two dates, wherein the date of the order is 18-2-1992 and the date of issue is 25-5-1992. Here again the date of issue is subsequent to the Notification 11/92 dated 14-5-1992. In this background, arguments were addressed by the Ld. Sr. Counsel, Sh. A.N. Haksar along with Ld. Counsel, Sh. Sanjay Grover appearing for M/s. J.K. Synthetics and by Sh. Jayant Bhushan, Ld. Advocate appearing for M/s. Pidilite Industry Ltd. and by Sh. M.K. Jain, Ld. S.D.R. and by Sh. L.N. Murthy, Ld. JDR for the department. Sh. Haksar, Ld. Sr. Counsel has pointed out that the date of despatch of the adjudication order or the date of receipt thereof by the assessee is not the right criterion. It is the date of passing of the order by the Additional Collector after hearing the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent and no change therein is made till its despatch that could also be a ground for holding that the date of signing of the order is the date of passing that order. The Ld. Counsel relied upon the Supreme Court decision in the case of Collector of Central Excise v. M. M. Rubber Co. - 1991 (55) E.L.T. 289 (SC) and urged that the Supreme Court had held that date of communication of the order to the party is the criterion where the parties rights are affected, whereas this criterion is not relevant for the purpose of determining whether the power has been exercised within the prescribed time. The Ld. Counsel also referred to the Supreme Court decision in the case of Bachhittar Singh v. State of Punjab and Another - AIR 1963 SC 395 and submitted that the facts of the case were distinguishable from the present issue before us and the ratio of that case cannot be taken, as laying down that the date of the order is the date of its communication. The Ld. Counsel, further, argued that a change in the status of the officer between the date of signing of an order and the date of communication thereof, would not mean that the order communicated is one passed in his changed status. The order, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n pursuance of show cause notice, then it cannot be said that order would have no force of law and would not come into effect as long as the same is not communicated to the party concerned. The Tribunal, in coming to this conclusion, had followed the Bombay High Court decision in the case of Cosmic Radio v. Union of India Another - 1983 (12) E.L.T. 84 (Bom.). Therefore, Shri Murthy urged that the jurisdiction to hear this appeal will continue to be with the Tribunal. 5. Submissions made by the Ld. Sr. Counsel, Ld. Counsel and the Ld. SDR and the Ld. D.R, have been carefully considered. In both these cases, the orders have been passed by the Additional Collector of Central Excise. In both these cases, the date of the order, as indicated in the Order-in-Original is prior to 14-5-1992 while the date of issue of these orders is subsequent thereto. The question, therefore, will be whether the Tribunal will have jurisdiction to hear these appeals which have been filed by the parties on receiving these orders subsequent to 14-5-1992 on which date the Notification 11/92 amended Rule 2(ii) of the Central Excise Rules according to which the Additional Collector of Central Excise is not t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and is not made dependent upon the communication of the same to the concerned party. In my judgment, the stand taken by the successor of Mr. Kullarwar is totally erroneous and his action in issuing fresh show cause notice to the petitioners and calling upon them to re-agitate the matter before him is contrary to the provisions of law. The petitioners, accordingly, are entitled to the reliefs sought in the petition." 6. It follows from the above that in these two cases, the Additional Collector has passed the order duly signed after hearing the applicants herein in pursuance of show cause notice, when clothed with the powers of the Collector, but the communication of that order is subsequent to 14-5-1992, and it also follows from the ratio of the above decision that the Additional Collector s orders in these cases will come into operation on the date the same is signed and is not dependent upon the communication of the same to the concerned party. The Bombay High Court decision has also been followed by this Tribunal in the case of P.N. Monga Bottlers (supra). The Supreme Court has, further, clarified and laid down the law in this respect in the case of M.M. Rubber Co. (supra). P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llector on a date prior to 14-5-1992 when Additional Collector was by definition Collector , the appeals from such orders will lie to the Tribunal even though it might have been issued subsequent to that date. 8. [Dissent per : S.L. Peeran, Member (J)]. - I have gone through the order passed by my learned brother Shri K.S. Venkataramani, Member (Technical) but I regret my inability to agree with him. Hence I am recording my separate order. 9. My learned brother has already extracted the arguments and main contention of the parties. By Notification No. 11/1992-C.E., dated 14-5-1992, amendment to the Rule 2 in sub-rule (ii) to the definition of Collector has been effected by addition of these words - and includes an additional Collector and in Clause (B), the words, letters and figures and include an Additional Collector, except for the purpose of Chapter VI-A of the Central Excises and Salt Act, 1944" shall be substituted. The effect of the amendment is that the Chapter VI-A dealing with appeals gets affected especially Section 35 which reads as follows :- Section 35 - Appeals to Collector (Appeals) - (1) Any person aggrieved by any decision or order passed under this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... passed prior to the date of notification but communicated after the date of notification should be filed in the Tribunal then in that event, a right conferred by notification by amendment to the aggrieved party, is being deprived. 11. Maxwell on The Interpretation of Statutes 12th Edition by P. St. J. Langam at page 216 quoting Craies on Statute Law states as follows :- Before the presumption against retrospectively is applied, a Court must be satisfied that the Statute is retrospective... which takes away or impairs any Vested right acquired under existing laws, or creates a new obligation or imposes a new duty, or attaches a new disability in respect to transactions considerations already past. Again, at page 222, it states that - The presumption against retrospective construction has no application to enactments which affect only the procedure and practice of the Courts. No person has a vested right in any course of procedure, but only the right of prosecution or defence in the manner prescribed for the time being, by or for the Court which he sures, and if an Act of Parliament alters that mode of procedure, he can only proceed according to the altered mode. Alterna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls a substantive right and an enactment which does so is not retrospective unless it says so expressly or by necessary intendment (para 12 AIR 1960 SC 980). 13. In the present case, there has been no impairment of any right by amending the powers of Additional Collector for the purposes of filing appeal against his orders. In fact, this amending legislation confers another right of appeal and it does not take away any right. The amendment is merely procedural and it will have retrospective effect, as the amendment has only changed the venue of the appeal from Tribunal to the Collector (Appeals) and therefore, it does not affect the vested right of an aggrieved party to file the appeal. In these context, in a similar situation, the Hon ble Supreme Court of India has clarified the same in the case of Union of India v. Sukumar as reported in (AIR 1966 SC 1206) at paras 6 to 9 at pages 1208 to 1209 which is reproduced below :- The learned Solicitor-General, who appeared on behalf of the appellant, contends that the High Court was in error in holding that the accused had a vested right to be tried by an ordinary criminal Court. He says that the amendment only changed the venue of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n a reasonable opportunity of being heard and if, on such inquiry, he is satisfied that the person has committed the contravention, he may impose such penalty as he thinks fit in accordance with the provision of the said Section 23: Provided that, if at any stage of the inquiry, the Director of Enforcement is of opinion that having regard to the circumstances of the case, the penalty which he is empowered to impose would not be adequate, he shall, instead of imposing any penalty himself; make a complaint in writing to the Court." (8) The effect of these provisions is that after the amendment of 1957, adjudication proceedings or criminal proceedings could be taken up in respect of a contravention mentioned in Section 23(1) while before the amendment only criminal proceedings before a Court could be instituted to punish the offender. The High Court, as already observed, held that the new amendment did not apply to contraventions which took place before the Act came into force. (9) Mr. Chatterjee, the learned counsel for the respondent urges that a substantive vested right to be tried by an ordinary Court existed before the amendment and he relied on Maxwell 11th Edition, p. 217 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the whole estate of Raghurai accelerating the succession to his estate. We have also examined the grounds upon which the High Court took a contrary view holding that the document of 1906 and the supposed act of Jira Bai did not amount to a valid surrender of the whole estate of Raghurai. On a proper appreciation of the aforesaid transactions there had been no acceleration of the succession to the estate of Raghurai by a complete self-effacement on the part of Jotkunwar and Jira Bai. Accordingly, the transactions were in the nature of gifts which could only operate up to the death of Jotkunwar. We have construed the document of 1906 and have kept in mind the submissions made on behalf of the appellants and have come to the conclusion that the view taken by the High Court was the correct view. It is quite clear from the terms of the document that Jotkunwar did not surrender the whole of the estate which came to her from her husband. She had reserved to herself cultivating rights in the sir lands to the extent of 91.5 acres. Such an area was a substantial area. The surrender therefore, was not complete. The self-effacement by Jotkunwar and her daughter Jira Bai to be of any conseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed party. The said para 8 is reproduced below :- It was lastly submitted by M. Chagla that a reference to the High Court under Section 11 of the Act at the instance of the Commissioner of Salex-Tax was incompetent as the Commissioner was neither a dealer nor a person aggrieved within the meaning of the section as it originally stood and the amendment effected in sub-section (3) of Section 11 by U.P. Sales-Tax Act 8 of 1954 which came into force on April 1, 1954 was not retrospective in character and could not apply to proceedings which had been initiated earlier before Sales-Tax authorities as well as before the Revising authority. It was pointed out that the appellate order was made on January 4, 1952 and the revision application was filed before the amending Act of 1954 came into force. It further appears that the revision application was disposed of on July 8, 1957 by the Revising authority. The contention put forward on behalf of the appellants was that the Commissioner had no power to apply for a reference at the time the appellants had made the application for revision. It was conceded by Mr. Chagla that at the time the Commissioner applied for a reference under Section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his aspect of the case." 16. The powers of authority does not in any way effect the vested right of filing an appeal. As stated in this case, the change brings in another forum of second appeal and the benefit of the amendment cannot be deprived to the aggrieved party. On this aspect also the Hon ble Supreme Court has held so in the case of Bhagat Singh v. Management of New Delhi Tuberculosis Centre as reported in [AIR 1986 SC page 842] at paras 11 to 14 at pages 844-846, reproduced below: - In interpretation of statutes, Courts have steered clear of the rigid stand of looking into the words of the section alone but have attempted to make the object of the enactment effective and to render its benefits into the person in whose favour it is made. The legislators are entrusted with the task of only making laws. Interpretation has to come from the courts. Section 17B on its terms does not say that it would bind awards passed before the date when it came into force. The respondents contention is that a section which imposes an obligation for the first time cannot be made retrospective. Such sections should always be considered prospective, in our view, if this submission is accep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... December 1, 1965, on which date the section came into force. This court did not accept this plea. The appellant s counsel submits that Section 2A and Section 17B are more or less similar in their phraseology and when this court gave Section 2A retrospectivity. Section 17B should also be treated alike. This is what this Court said while dealing with Section 2A: When the section uses the words, where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman it does not deal with the question as to when that was done; it refers to a situation or a state of affairs. In other words, where there is a discharge, dismissal, retrenchment or termination of service otherwise the dispute relating to such discharge, dismissal, retrenchment or termination of services becomes an industrial dispute. It is no objection to this to say that this interpretation would lead to a situation where the disputes would be reopened after the lapse of many years and referred for adjudication under Section 10. The question of creation of new right by Section 2A is also not very relevant. Even before, the introduction of Section 2A a dispute relating to an ind ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r v. M.M. Rubber Co. has to be seen in this context. The powers of an authority to exercise its review power has to be done within the prescribed time. The Hon ble Supreme Court has clearly observed in para 12 as cited in the main order, that the date of the communication of the order to the party is the date when the rights are effected. The Hon ble Supreme Court was on the aspect of the authority exercising its powers within the prescribed time limit fixed by the law. The later portion of the observation by the Hon ble Supreme Court on the date of communication of the order to the party, whose rights are affected, is the relevant portion applicable to the facts of this case. In this case, the remedy of filing the appeal and choosing the forum to exercise the right of appeal is only from the date of communication of the order to the party whose rights are affected. In this case, the order has been communicated after the effective date of the notification; therefore, the amendment having taken place to the appellate forum, the aggrieved party has to file the appeal before the Collector and not before this Tribunal, as this Tribunal s power to entertain appeals from the orders of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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