9911796707
TMI Blog1988 (8) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... case is whether the Additional Collector of Central Excise is an authority lower in rank to the Collector of Central Excise or not and that if it is held that the Additional Collector of Central Excise is not lower in rank to the Collector of Central Excise, in that event, the appeal against the order passed by the Additional Collector shall lie to the Appellate Tribunal, namely, the Special Bench of CEGAT, New Delhi and on the contrary, if it is held that the Additional Collector of Central Excise is lower in rank to the Collector of Central Excise, in that event, the appeal which was filed by the petitioner before the Collector of Central Excise (Appeals) Calcutta would be held to be maintainable and the order dated 12th February, 1985 passed by the Customs Excise and Gold (Control) Appellate Tribunal, Calcutta Bench would be illegal. The fact in short relevant for the purpose of determination of this question is as follows : 2. It was alleged that the petitioner company availed irregular exemption under Notification No. 71/78, dated 1-3-1978 as amended by Notification No. 91/78, dated 31-3-1978. Notification No. 71 /78, dated 1 -3-1978 exempted the gas falling under Tariff It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi and furnishing proof of such withdrawal, it will be permitted by the Collector of Central Excise (Appeals) to refile the appeal before him within three weeks from this date and in that event the Collector of Central Excise (Appeals) shall decide the question of jurisdiction to hear the appeal after giving the petitioner an opportunity of being heard and pass a reasoned order on that question......" Pursuant to the said direction passed by this Court, the Collector of Central Excise (Appeals) Calcutta heard the matter and held that the said appeal was not maintainable before the said authority, inasmuch as the post of the Additional Collector of Central Excise was equivalent to the post of Collector of Central Excise and as such the appeal would lie under the law before the Appellate Tribunal and the Collector of Central Excise (Appeals) Calcutta also passed an order restraining the Central Excise Officer, Patna not to enforce the demand of extra duty as well as penalty until CEGAT, Calcutta Bench passed an interim order or final order in the appeal to be filed by the petitioner. Against this order the petitioner filed another application before this Court whereupon I disposed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he post of Collector, appeal would lie from the order passed by the Additional Collector to the Collector. In this case, the Tribunal held that the Additional Collector of Central Excise is administratively under the Collector and was undoubtedly subordinate to the Collector of Central Excise, Jaipur. It was held that for the purpose of Central Excise Rules, however he is a Collector. But for the purpose of adjudication he is not a Collector as he does not have unlimited powers but reduced powers. 5. Mr. Banerjee, learned Advocate appearing on behalf of the petitioner contended that the question involved in this writ application is of great importance inasmuch as if it is held that Collector includes Additional Collector in that event, only one appeal would lie inasmuch as against the order of Collector appeal lies to the Appellate Tribunal under Section 35B of the Central Excise Act whereas if it is held that if Additional Collector is subordinate to the post of Collector, in that event, first appeal would lie under Section 35 of the said Act to the Collector (Appeals) and then there would be a second appeal to the Appellate Tribunal under Section 35B(b) of the said Act. The wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he question is as it has been held by the CEGAT in the case of Khatri Bidi Works Beaware v. Collector of Central Excise, Joypur wherein this question was considered and it was held that the words 'Additional Collector' is only confined to the word Salt Commissioner in category 'B'. Such a construction of the definition of the word 'Collector' in my view is wholly mis-conceived, inasmuch as, within the definition of Collector, firstly under Category A, several Collectors of several areas have been mentioned and therefore, under Clause (B) it was provided that in relation to Salt Commissioner and after both the categories the words "and includes an Additional Collector" covers both the categories (A) and (B). The Clause (A) and Clause (B) of the definition of the word 'Collector' are placed in the statute in a shorter margin and the words "and includes an Additional Collector ....." have been placed under a bigger margin which makes it clear by the statute that the words "and includes Additional Collector ......" control and qualify both the categories (A) and (B). 6. If it is the intention of the Rule Making Authority that the words 'Additional Collector' is only confined to Claus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is made crystal clear that the Central Board of Excise and Customs have appointed Collector of Customs, Calcutta and the Additional Collector of Customs Calcutta as Central Excise Officer and invested the said Collector and Additional Collector with the powers of a Central Excise. Similar other notifications are there where the Collector and the Additional Collector have been appointed as Central Excise Officers and invested with the Collector and Additional Collector of Customs with the power of Collector of Central Excise. In my view, if such power was not conferred by the Central Board upon the Additional Collector to discharge the power and function of a Collector, in that event any order passed by the Additional Collector would have been void and illegal, inasmuch as, under the Act until and unless such authorisation is made either in the Act by expressed word or through delegation of power by the Central Board, in that event, the Additional Collector could not have exercised any function whatsoever. The said notifications are in the nature of the statutory instruments in the nature of contemporary exposition, inasmuch as, this notification shows how statute was understood by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. The Court may read word which is considered to be necessarily implied by word which is already in the statute and as limited power to add to, alter or ignore statutory word in order to prevent a provision from being unintelligible, absurd or totally unreasonable, unworkable or totally irreconcilable to the rest of the statute. The meaning is clear and the intention of the statute is also clear. Any other meaning to the provisions of Section 33 could be contrary to the machinery provided under the Act. Accordingly, it is made abundantly clear that the post of Additional Collector comes within the definition of the word 'Collector' and the Additional Collector had to discharge the power and function of a Collector and accordingly, appeal would lie to the Appellate Tribunal under Section 35B of the said Act. It is immaterial whether against the order of adjudication, there would be one appeal or two appeals. If the adjudication is made by the Assistant Collector, the Act provided for two appeals. On the contrary, if the adjudication is made by the Collector, in that event, there would be only one appeal. The adjudication is taken up by the Collector or Assistant Collector on the ba ..... X X X X Extracts X X X X X X X X Extracts X X X X
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