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TMI Blog1996 (10) TMI 273X X X X Extracts X X X X X X X X Extracts X X X X ..... (Appeals) for determination of the points arising out of the decision of the Assistant Collector. Accordingly, Assistant Collector (Legal) filed an application which by virtue of Section 35E(4) was required to be treated as an appeal. The Collector (Appeals) dismissed the appeal holding that the order of the Collector directing application to be filed was barred by time and the authority granted to the Assistant Collector who was not the adjudicating authority was not valid. Collector (Appeals) did not go into the merits. This order is now challenged. 3. The view taken by the Collector (Appeals) that application filed before him under Section 35E(4) of the Act was barred by time stipulated under Section 35E(3) of the Act does not appear to be correct. The adjudication order was passed on 9-12-1982. The Collector passed order directing the Assistant Collector to file an application before the Collector (Appeals) under Section 35E(4) of the Act. The Collector (Appeals) was of the opinion that since order of the Collector passed under Section 35E(2) of the Act was passed beyond the time stipulated under Section 35E(3) the application before the Collector (Appeals) was not maintainab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant has been given a reasonable opportunity of showing cause against the proposed order. This proviso give a jurisdiction to the Collector (Appeals) to pass an order which is not within his jurisdiction ordinarily. In an appeal preferred by an assessee ordinarily the question of enhancing the penalty or the like would not arise. But the first proviso gives such power to the Collector (Appeals) subject to the appellant been given a reasonable opportunity of showing cause against the proposed order. 5A. The second proviso to sub-section 35A(3) reads thus : Provided further that where the Collector (Appeals) is of opinion that any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded, no order requiring the appellant to pay any duty not levied or paid, short levied, or short paid or erroneously refunded shall be passed unless the appellant is given notice within the time limit specified in Section 11A to show cause against the proposed order . This proviso also invests the Collector (Appeals) with power which an appellate authority would not normally have. In any appeal preferred by the assessee ordinarily the questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an appeal filed by the department. 6. The other ground which found favour with the Collector (Appeals) is that the Collector under Section 35E(2) of the Act could not have issued a direction to the Assistant Collector (Legal), an officer other than the adjudicating authority, to file an application before the Collector (Appeals) under Section 35E(4) of the Act. 7. Section 35E of the Act deals with power of Board or Collector of Central Excise to pass certain orders. Sub-section (1) enables the Board to call for and examine the record of any proceeding in which a Collector as an adjudicating authority has passed an order under the Act to satisfy itself as to the legality and propriety of any such order. The Board may pass an order directing such Collector to apply to the Appellate Tribunal for determination of such points arising out of order as may be specified in the order. We may take note of the fact that by virtue of the Central Excise Rules, 1944, Collector of Central Excise would include Additional Collector of Central Excise also. 8. Sub-section (2) of Section 35E reads thus :- (2) The Collector of Central Excise may, of his own motion, call for and examine the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority in sub-section (2) are to be understood in a restricted sense as indicating only the officer who actually passed the adjudicating order, the question of an authorised officer other than adjudicating authority filing an application under sub-section (4) would not arise. There is an apparent conflict between the language used in sub-section (2) and the language used in sub-section (4). Generally literal interpretation of statutory provisions is favoured but where literal interpretation leads to an absurdly or conflict with another statutory provision, the interpretative process must try to achieve harmonious understanding of the provisions. No provision can be understood in isolation i.e. without reference to the other relevant provisions. The meaning and content of any statutory provision can be understood and appreciated only in the context of the scheme and other provisions of the Act. There is no specific provision in Section 35E enabling the adjudicating authority or the Collector of Central Excise to authorise an officer to make an application to the Tribunal. Sub-section (2) speaks of directing such authority to apply to the Collector (Appeals). Sub-section (4) spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te that in cases where the adjudicating authority is unavailable for being directed if reasonable to conclude that the direction can be fulfilled by any customs officer authorised by the Collector although he may not be the officer who adjudicated the case. 13. In the circumstances, we are of opinion that Section 35E(2) of the Act requires a broad interpretation, reading it in harmony with Section 35E(4) of the Act. Collector can issue direction to the adjudicating officer or any other officer for relevant reasons. Where direction is issued to a particular officer, the officer so directed can, for relevant reasons, authorise another officer to file the application. The officer directed by the Collector or an officer authorised by the latter can file the application. Collector (Appeals) was in error in holding that the Collector could not validly direct an officer who was not the adjudicating authority to file the application. 14. The Collector (Appeals) did not consider the merits of the appeal filed before him. Therefore the case has to go back to the jurisdictional officer for fresh disposal on merits. 15. We set aside the impugned order and remand the case to the jurisdic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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