9911796707
TMI Blog1988 (3) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... already deposited or likely to be deposited from time to time without payment of duty in its warehouse. When once the list is so published, the proper officer conducts the necessary enquiries and may approve the list with such modifications as are considered necessary by him. The classification so made, in respect of the excisable goods manufactured by the petitioner-company, by the Collector of Customs and Central Excise, was taken in appeal before the Appellate Collector of Central Excise, Madras, by the petitioner under Section 35 of the Central Excises and Salt Act. The appellate authority by its order dated 19-2-1979 (Ext. P4) set aside the assessment orders in three cases and remanded them for adjudication by the Assistant Collector. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot being a decision or order passed on appeal under Section 35) for the purpose of satisfying himself as to the correctness, legality or propriety of such decision or order and may pass such order thereon as he thinks fit." It is, therefore, clear that the Collector of Central Excise has got suo motu power of revision under this provision only in respect of orders passed by the Central Excise Officers subordinate to him. He has no jurisdiction to take suo motu action in respect of a decision or order passed in appeal under Section 35. The Appellate Authority who passed the remand order on 24-11-1980 as per Ext. P6, was not a Central Excise Officer subordinate to the Collector of Central Excise. We are told that the Appellate Collector of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llate authority in Ext. P6 noticed that the Chemical Examiner of the Department had visited the petitioner's premises in the meanwhile, taken samples and given his opinion in respect of some of the categories of paper manufactured by the petitioner. Having noted that, the appellate authority stated thus:- "On a perusal of the impugned order, I do not find that the lower authority, before entering into the findings as contained therein, has sought the opinion of the Chemical Examiner relating to the paper in question. On the other hand the appellants during the course of personal hearing have argued that the Chemical Examiner visited their factory after issue of the impugned order, drew the samples and gave his opinion, and in light of his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oratory. It is well settled that in the matter of classification of goods, the general rule-shall be the acceptance by the people, in the trade and use of such goods, i.e., in other words, what is commonly known and understood of the goods. Therefore, the contention of the assessee that the Collector is bound by the opinion of the Chemical Examiner and that he has no jurisdiction for this review, has not much substance." 4. When the appellate authority as per Ext. P6 directed that the assessment should be made with reference to the report of the Chemical Examiner, an authority of co-ordinate jurisdiction, the Collector of Central Excise, cannot ignore that remand order and hold in suo motu revisional proceedings that the opinion of the Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... annot set it aside, he cannot set aside Ext. P7, the consequential order passed in pursuance of Ext. P6. What the Collector has stated is that the basis for assessment should be the description of the goods as understood in general parlance and that the Chemical Examiner's report has to be ignored. This is directly opposed to the earlier remand order, Ext. P6, issued by an authority, at least of the same status as that of the Collector, if not higher. Ext. P7 has thus been set aside by the Collector clutching at jurisdiction, which he did not have. Purporting to set aside Ext. P7, what the Collector has done is in effect to nullify Ext. P6, the order of the appellate authority. He cannot be allowed to do so. 6. The principles stated by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order. It is only when it was found that the remand order and the report of the chemical examination benefited the assessee, that the Collector found reasons to invoke his revisional jurisdiction, when none existed under the Act and the Rules in the present case. 7. The counsel for the Department contended that Ext. P6 did not direct that the Chemical Examiner's Report should be the only guiding factor in making the classification of goods or making the assessment. We have extracted Ext. P6 in full earlier. A reading of Ext. P6 will show that the Appellate Authority has directed that the assessment should be based on the report of the Chemical Examiner. If that was not required, there was no necessity for him to set aside the order of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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