9911796707
TMI Blog1984 (7) TMI 370X X X X Extracts X X X X X X X X Extracts X X X X ..... r (Appeals), against the order of the Assistant Collector, an application by means of a letter dated 26-12-1983 seems to have been moved by the appellants. A letter, bearing the date 3-2-1984, was addressed to the appellants by Superintendent (Appeals) intimating that :- "After due consideration, grant of stay has been rejected. You are requested to deposit the amount immediately. Deposit particulars may be intimated enabling the appeal to be entertained and P.H. fixed." 2. Treating this to be an order of Collector (Appeals), the appellants have filed the instant appeal before the Tribunal. On the same being taken up for hearing, Shri C.L. Beri, Advocate appeared for the appellants whereas the Department was represented by Shri K.D. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in situations such as the present, and that this power has to be deemed to be implicit in the provisions of the Act. The learned counsel further argued that even otherwise the order passed under Section 35F of the Act will come within the ambit of orders contemplated bySsection 35B because any order passed during proceedings in an appeal filed before the Collector (Appeals) will, have to be taken as an order passed under Section 35A of the Act. He cited AIR 1969 S.C. 430 (Income-tax Officer, Connanore v. M.K. Mohammed Kunhl) to press his point as to vesting of incidental and ancillary powers in the Tribunal and further made reference to a judgment of Calcutta High Court reported as 1975 Taxation Law Reports 1351 (M.S. Naina v. Collector of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and could not be treated as an order passed by the Collector (Appeals), and as such the appeal in respect to said communication could not be entertained. 6. We have given our very careful thought to the issue, thrown up for consideration by this appeal, and we are constrained to hold that the Act does not provide for any appeal, against an order, which might be passed on an application moved under Section 35F of the Act before the Collector (Appeals). A cumulative reading of the provisions of Sections 35A and 35B of the Act makes the intention of the Legislature abundantly manifest. We reproduce below the relevant provisions to bring the position in proper perspective: "Sec. 35A. Procedure in appeal. - (1) The Collector (Appeals) s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant, the adjudicating authority and the Collector of Central Excise. Sec. 35-B. Appeals to the Appellate Tribunal. -(1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order - (a) A decision or order passed by the Collector of Central Excise as an adjudicating authority; (b) an order passed by the Collector (Appeals) under See. 35-A; (c) an order passed by the Central Board of Excise and Customs constituted under the Central Board of Revenue Act, 1963 (hereafter in this Chapter referred to as the Board) or the Appellate Collector of Central Excise under Sec. 35, as it stood immediately before the appointed day; (d) an order passed by the Board or the Collector of Central Excise, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eference to applications under Section 35F of the Act. A reading of Section 35F suggests that dispensation with requirement of pre-deposit, pending disposal of the appeal, has been left to the discretion of the Collector (Appeals) or the Appellate Tribunal, as the case may be. No provision had been made for redress to the party, in the event of refusal to grant relief sought by means of an application under Section 35F of the Act, by the Collector (Appeals). 8. Judgment of the Calcutta High Court cited by the learned Counsel [1975 TLR 1351 (supra)] with reference to provisions of Section 128 of the Customs Act, 1962 is entirely distinguishable because the said section provided for appeals against "any decision or order passed under th ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
