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TMI Blog1983 (7) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... of determining the forum of appeal, against an order or decision, passed by the former. This is how the present larger Bench (hereinafter referred to as the Bench) came to be constituted, for resolving the issue. 2.The Bench had its first sitting on 18-5-1983, when Shri Harbans Singh, Advocate, who is Counsel for the two Appellants in Appeals No. ED (DEL) STAY No. 10/82-NRB and No ED (DEL) STAY No. 18/82-NRB, which came up before the second Regional Bench who made the reference, was apparently there to defend the view expressed in the order of reference, while Shri M. Ganesan, Advocate, who happened to be Counsel in another appeal, which had been filed under the provisions of the Gold (Control) Act, was also present to watch the proceedings. Shri D.N. Kohli, Advocate had presumably filed some appeals, before the Tribunal against some order of the Additional Collector, Central Excise, but had withdrawn the same, as a sequel to the earlier order of the North Regional Bench expressing the view that the term "Collector" as used in Section 35B of the Central Excises and Salt Act, 1944 (hereinafter referred to as the Act) would not take in its sweep the Additional Collector of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Gwalior Rayon Manufacturing Weaving Co. v. Union of India and others, which pertained to the Central Excises Act, and Rules framed thereunder, and wherein it was laid down that Rules were part of the Act. 6.Having laid this premise, he elaborated his point by inviting attention to several provisions of the Central Excises and Salt Act, to bring home his arguments that this Act was a typical case of streamlined legislation, and that the rules which have been framed by the Central Government in exercise of the powers vested in it by Section 37 of the Act, were statutory rules, and an integral part of the Act, and that by virtue of the definition of Collector as given in Rule 2(ii), the term `Collector' would include : `Additional Collector' also, particularly when the Act has not at all defined the term `Collector'. He thus contended that in the absence of any definition of `Collector', in contrast to the Customs Act which itself defined this term, we have to fall back upon the rules, for this purpose; particularly, when they are to be treated to be a part of the Act, and were contemporaneously framed. 7.In his view, therefore, the matter did not admit of any doubt, and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 33(a) of the Act would lie only to Collector (Appeals), because for the purpose of the Act, he was certainly a functionary "lower in rank" than the Collector, and that Section 35 having provided for first right of appeal to the litigant before the Collector (Appeals) against orders of an officer "lower in rank to that of the Collector", this right could not be taken away by an executive fiat, and by bringing in definition as provided by the Rules. 11.He built up his arguments by contending that had there been any intention to include Additional Collector within the definition of Collector, there could have been an amendment in the Act itself, particularly when Chapter VIA of the Act has chosen to define certain terms, for the purpose of said Chapter by means of Section 36 of the Act which Chapter exclusively relates to appeals, and the fact that it was not done would imply that the legislature had not intended to stretch the definition of the Rules to the Act, and that since Sections 35 and 35B together provide two stages of appeal, to a litigant, any interpretation, that would have the effect of deprivation of the said right, has to be avoided. He further pointed out tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rted that the `Additional Collector' was certainly not of the `rank' of a Collector, but lower, and in case an `Additional Collector' were to be held a `Collector' anomalous position would ensue. According to him, `rank' could not be equated with designation. He summed up his arguments by contending that appeals against the orders of Additional Collectors could lie to the Appellate Collector or the Collector (Appeals), as the case may be. 14.Same position was taken up by Shri R.K. Jain, Secretary of the Bar, who argued at great length, as Intervener. He pin-pointed the controversy as being : as to "who is a Collector?" 15.The main stand of Shri Jain was that rules are certainly distinct from the Act, and that although the Act could be described as a streamlined legislation but that could not be said by way of a sweeping proposition. In his view, the Act was a complete code, so far as the provisions regarding appeals were concerned, and that for the purpose of determining the forum of appeal, and other related matters, rules have not to be referred to. He also made pointed reference to Chapter VIA and contended that it was entirely self-contained and that when there was a sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce on the seniority list of these officers inter se and contended that all of them have been shown in the grade of a Deputy Collector and wherever there was any instruction or order with reference to various grades of the officers of the Central Excise, `Collector' has been shown as a class apart whereas Additional Collector has been clubbed with Deputy Collector, and this was a clear indication of his status in the bureaucratic hierarchy, and that even if an Additional Collector has been entrusted with certain powers under the Rules, his power of adjudication under Section 33 has been expressly restricted. 20.He referred in this connection to a Circular issued by the Central Government being Circular No. 41/81-CX6, dated 7-5-1981 in support of this contention, and contended that the Additional Collector nowhere exercises unlimited power of adjudication of a Collector, as contemplated by Section 33(a). According to Shri Jain, rules always remained inferior to the Act and that would remain the position, irrespective of the provisions of Section 38, providing for laying of the rules before the two Houses of Parliament. He too propounded the theory of harmonious construction, but wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alien, and could not be imported in the Act, and that the Rules were subsidiary piece of legislation, and could never be a part of the Act. 23.First of all, he invited attention to the "Statement of Objects and Reasons" as reproduced in the Commentary on the Central Excises and Salt Act (3rd Edition) by R.S. Sethi, which indicated, inter alia that not only the Act but all Rules and Regulations framed thereunder, formed a complete Excise Code, and argued that the Rules have to be construed as an integral part of the Act. He distinguished status of the rules from what are known as executive instructions, embodied in the orders or circulars referred to by Shri Jain and contended that they have no binding force as against statutory rules, and wherever any restriction had been laid down by the Central Board of Excise and Customs (hereinafter referred to as the `Board'), that was by way of house-keeping arrangements, and were in exercise of their powers as supervisory authority, and so these internal administrative instructions could not curtail the scope of the statutory definition given in the Rules. 24.He further pointed out that rules have been accorded supremacy in the whole sc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated that true intention has been to accord supremacy to the rules to the extent of giving total or partial exemption from duty, by means of notification under Rule 8, which can have the effect of totally effacing or modifying the Tariff Rates as provided by the Schedule, which is a part of the Act itself. He argued thus that where the Legislature has provided for such a vast amplitude of powers of far-reaching consequence to the Revenue, the inclusion of the definition in the rules was a very innocuous provision, to make a `Collector' also to include an `Additional Collector' and this could not be subject matter of any controversy or challenge particularly when the sister Act, namely, the Customs Act, has made such a provision in the Act itself and nobody has thought of questioning or challenging it or urging that `Additional Collector, Custom' was not a `Collector' for the purposes of determining forum of appeal. 27.He also distinguished the authorities cited by Shri R.K. Jain particularly, which lay distinction between the status of the Rules qua the Act, pointing out that altogether different considerations and situations prevailed in those cases. He did not dispute the propo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not defined anywhere in the Act. There is also no difference of opinion on the point that the Rules, as they stand at present, do refer to a functionary, called `Additional Collector'. 31.The controversy, however, revolves round the fact as to how this definition in the rules pertains to the Collector as understood by the Act, particularly Section 33 thereof, which has reference to power of `adjudication'. 32.We have had propounded before us two absolutely contradictory views in this regard. Whereas the Departmental Representative and the learned Counsel for the Appellants, contended that the definition under the rules as introduced by the amendment by means of Notification No. 110/81 has reference both to Salt Commissioner as well as Collector, in relation to excisable goods, another set of Appellants represented by Shri D.N. Kohli, as well as the Secretary of the Bar earnestly contend that it is wholly disconnected with the Collector, so far as "excisable goods other than salt" are concerned and that it has sole reference to Salt Commissioner, as covered by clause (B) of Rule 2(ii). The only exception was the school of thought as represented by the learned President of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come into force on the date of their(2) publication in the official gazette. For clause (ii)(B) of Rule 2 of the Central Excise Rules,2. 1944, the following shall be substituted, namely :- in relation to salt, the Salt Commissioner; and includes an`(B) Additional Collector and any officer specially authorised under Rule 4 or 5 to exercise throughout any State or in specified area therein all or any of the powers of a Collector under these rules;' [Notification No. 110/81-CE/F. No. 208/15/81-CX]. Sd/- D. Mehta Under Secretary 36.The contention is that the operative part of the Notification as represented by para 2 thereof indicates that only clause (ii)(B) of Rule 2 of the Rules was being substituted and thus the only possible inference is that this inclusion of `an Additional Collector' has reference only to Salt Commissioner, as envisaged by this clause (B), and cannot at all be correlated to the `Collector', as meant in clause (A). Emphasis was also laid on the presence of a `full-stop' after (y), i.e., last sub-clause of clause (ii)(A), and also that of a `;' after the Salt Commissioner. It was urged that clauses (A) and (B) where totally disjunctive and independent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich will introduce uncertainty, friction or confusion, into the working of the system" and that "we should avoid a construction which would reduce the legislation to futility". 40.Considering the fact that, as already observed, that the authority, from whom the notification under reference emanated is only concerned with Collectors as Central Excise Officers, and in view of the fact that Collector of Central Excise is not even ex-officio acting as `Salt Commissioner', and in view of the fact that the set up of the Salt Commissioner has an absolutely different administrative hierarchy than that of the Central Excise Officers and they are designated as Salt Commissioner, Deputy Salt Commissioner and Assistant Salt Commissioner, we are of our firm view that this notification has primarily reference to the Collector as envisaged by (A) of Rule 2(ii), and not merely to (B); We come to this view for another reason and that is with(b) reference to the rule of contemporaneous exposition. We observe that shortly before this notification was issued, the Central Government had, as a sequel to the recommendations of a Study Group on Administration made during Collectors' Conference, 1980, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat : "In the past reference has occasionally been made to what those who framed a statute, or individual members of the legislature, intended to do by the enactment, or understood it to have done". 45.He again says at page 264 of the same Edition that : "It is obvious that the language of a statute must be understood in the sense in which it was understood when it was passed, and those who lived at or near the time when it was passed, may reasonably be supposed to be better acquainted with the circumstances to which it has relation, as well as with the sense then attached to legislative expressions". 46.He further says : "that the long acquiescence of legislature in the interpretation put upon its enactment by notorious practice may, perhaps, be regarded as some sanction and approval of it". 47.We can thus surely say with authority that the fact that all concerned with the interpretation of this notification, namely, the persons effected by the decisions and orders of the Additional Collectors, as well as the Board, who was the competent authority to entertain appeals only against the orders and decisions of the `Collector', so far as statute was concerned, did take th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority of the Collectors and Additional Collectors. We are thus in a very advantageous position of having version of that very authority, who issued the notification, and that too not in a very remote past, and which interpretation has had the sanctity of acceptance by all concerned. We also feel that the golden rule being attempt at(c) avoiding an absurd result, and conflicting views, we ought not be very punctilious about the grammatical forms or drafting irregularities, as are manifest in the notification. For, once we find that the intention was clear, we can safely ignore defects in drafting whatever they may be, or grammatical mistakes in having a full-stop in place of `;' so as to give the whole of the Rule 2(ii) a running effect. Here again, we have support for our view, from Maxwell On the Interpretation of of Statute (12th Edition) where he goes to the extent of saying at page 231 that : "Sometimes, were the sense of the statute demands it or where there has been an obvious mistake in drafting, a court should be prepared to substitute another word or phrase for that which actually appears, in the text of the Act". What applies to a statute, can certainly be applied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it relevant to see as to whether there is really any inconsistency between the Act and the Rules or are the Rules really repugnant to any of the provisions of the Act? And on a cumulative reading of the provisions of the Act, and its scheme, we find there is none, so far as the controversy before us, is concerned. 55.It is a settled proposition that statutory rules are always considered as part of an enactment, which provides for framing of the same, so much so that they have been given the status of `law' by even the Constitution of India inasmuch as Article 366(10) defines `existing law' to mean : "any law, ordinance, order, bye-law, rule or regulation passed or made before the commencement of this Constitution by any Legislature, authority or person having power to make such a law, ordinance, order, bye-law, rule or regulation;". Article 13 further defines `law' in sub-section (3)(a) to include any `ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;'. The position is thus beyond the pale of any controversy that statutory rules have the status of a law, and are entitled to same consideration; the only r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... officers were defined in the Act and their designations were left to be provided either by the Board or by means of an exercise of powers under the Rules, but even the basic matter of levy and collection of duty as contemplated by the charging section, was to be determined, by the Rules as indicated by Section 3. 59.We further observe that matters of far-reaching consequences for the subject; namely, that of offences and penalties as provided under Section 9 of the Act, including minimum punishment for six months, are with reference to not only contravention of the provisions of the Act, but also that of Rules and even notifications, and reference to them is interspersed, in almost all the clauses of this Section 9. We further find that Section 37 itself which confers the rule-making power on the Central Government specifies such important matters to be regulated by the Rules, as determination of the "nearest ascertainable equivalent of the normal price" [Section 37(2)(i)(a)]; defining or specifying the kinds of trade discount [(ib)]; providing for authorities who can discharge the function of assessment of duty [(ic)] provide for remission of duty on any excisable goods, and mos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Consequently, though the Act does contain reference to a Collector, or Deputy Collector, as a functionary, but for understanding true import of their functions, reference will have to be invariably made to the Rules. 63.The task before us is to construe harmoniously the provisions of the Act and the Rules and determine as to whether the definition of `Collector' as now amended by means of the Rules, can encompass within its scope, the expression `Additional Collector', so as to be treated as a `Collector' as envisaged by Section 35B of the Act or is `Additional Collector' lower in rank to the `Collector' as an `adjudicating authority' within the meaning of Section 33 of the Act. 64.During the hearings, the `Additional Collector' has been exposed to a great deal of analysis, as to his status and ranking in administrative hierarchy, and the fact of his subordination to the Collector was repeatedly highlighted to render him as an officer `lower in rank' to the Collector, but we find ourselves unable to fall in line with the argument advanced in support of the said view. 65.We cannot help saying that this argument about Additional Collector, being lower in rank, has a beguilin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal Collector being equated by means of rules only, does not even rise, the same administrative hierarchy prevails but it is nobody's case that appeals against orders of Additional Collectors, under the Customs Act were not filed before the Board in the first instance, or could not now be filed before the Tribunal, in the same manner as against the orders of the Collector. It is a matter for judicial notice that posts of Collectors and Additional Collectors of Customs are inter-changeable with those of their counter-parts as Central Excise Officers. And as such they have to enjoy identical status. 69.It is thus obvious that what is material is only "functional rank" and once an officer is equated with another by means of a deeming provision, such as `inclusive definition', then for the purpose of functions it becomes equated with the other authority. 70.The most outstanding instance is the definition of a "District Judge" which term, according to Article 236 of the Constitution, includes, inter alia, an "Additional District Judge". Both are members of higher or superior Judicial Service of a State but the cadre has posts carrying time-scale, selection-grade and supertime scale ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... extend to degrees of nobility not known when it was made, such as `dukes, marquises and viscounts'. And similarly, Engraving Copyright Act, 1934 which imposed a penalty for piratical engraving, by etching or otherwise or `in any other manner copying prints and engravings', applied to copying by photography. Edison's telephone was held to be a `telegraph' within the meaning of the Telegraph Act, 1863, and `Bicycles' were held to be `carriages' within the provision of the Highway Act, 1835 and so on. 75.We have in our statute book also a number of deeming definitions which create such fictions, as would not be contemplated in their ordinary sense, and the most peculiar definition is given in Section 13(2) of the General Clauses Act, which lays down that unless there is anything repugnant in the subject or context : (1) the word importing `the masculine gender shall be taken to include females' and (2) the words `in the singular shall include the plural' and vice versa. We have also definition of "person", in Section 3(42) of the said Act where a person will include even a firm. 76.This practice of extending meaning or giving new meaning, to terms of established legal or etymol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the firm view that there is no contradiction between this interpretation vis-a-vis provisions of Section 37A of the Act, because this section speaks of delegation of powers to subordinate authorities and `Additional Collector' did not have to be mentioned therein, having been equated to the Collector by virtue of the inclusive definition. It is to be noted that corresponding section in the Customs Act, viz., Section 122 also does not make any mention of `Additional Collector'. This is obviously for the reason, that on account of the definition, he becomes a `Collector'. 82.In the light of this position, we do not think that circular issued by the Board being No. 41/81, dated 7-5-1981 placing limits on the pecuniary jurisdiction of the Additional Collectors, is of any consequence. This Circular, it may be noted, does not emanate from any statutory power, and it is for this reason that it does not refer to any. It has obviously no reference to Section 33 because proviso thereto only contemplates conferment of powers of (a) and not curtailment thereof. This Circular is thus no more than division of work or demarcation of jurisdiction by way of internal administrative arrangement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act also. 84.We, however, consider it our duty to refer to some of the authorities cited by Shri R.K. Jain, in support of his contention that an Additional Collector cannot be equated with the Collector. The authorities are AIR 1965 SC 1619 (Ajaib Singh v. Gurbachan Singh) where it was held that no officer below the rank of a District Magistrate can exercise the power of detention, and that an `Additional District Magistrate', vested with the powers of a `District Magistrate,' within Section 10(2) of the Code of Criminal Procedure, could not be deemed to be District Magistrate, in law for the purpose of authorising detention under the Defence of India Act, 1962. This authority is clearly distinguishable because it was not a case of any deeming definition, given in the Act, but conferment of powers which had to be done by the State under Section 10(2) of the Code of Criminal Procedure, 1898, by specific orders. It was in this context that it was held that Additional District Magistrate who could be given the power of a District Magistrate by the State Government under Section 10(2) of the Criminal Procedure Code could not be taken to be a District Magistrate for the purpose of Def ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 (2) E.L.T. J. 333). There cannot be any disputing the proposition, but the big question is as to whether there was any such right before the introduction of the inclusion definition by Notification No. 110/81 and the answer is in the negative, inasmuch as the Act as it stood before its amendment, provided only one right of appeal and rule 213 determined the forum of that appeal, against the order of the Collector, only to be the Board and in cases of officers lower in rank that of the Collector, first appeal was provided to the Appellate Collector, and no second appeal but only a revision. It is only by virtue of Finance (No. 2) Act, 1980 that the provisions of the Act were amended so as to provide an entirely different set of forum for appeals, and for the first time, two stages of appeals were created, in certain cases, as covered by Section 35 and then Section 35B, but that right accrued to the subject only with effect from 11-10-1982, which was "the appointed date", for the purposes of the Act. The provisions regarding right of two appeals, became operative, thus, only with effect from 11-10-1982, with the result that there was no such right existing or prevailing in April 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a (1961) 2 SCR 679 at p. 702; (AIR 1961 SC 751); (See also Maxwell : Interpretation of Statutes, 11th Edn. pp. 49-50). So, statutory rules made pursuant to the power entrusted by Parliament are law made by the Parliament within the meaning of Article 302 of the Constitution. To hold otherwise would be to ignore the complex demands made upon modern legislation which necessitate the plenary legislating body to discharge its legislative function by laying down broad guidelines and standards, to lead and guide as it were, leaving it to the subordinate legislating body to fill up the details by making necessary rules from time to time to meet unforeseen and unpredictable situations, all within the framework of the power entrusted to it by plenary legislating body. State of Mysore v. H. Sanjeeviah (1967) 2 SCR 361 : (AIR 1967 SC 1189) was cited to us to show that rules did not become part of the statute. That was a case where by reference to Section 77 of the Mysore Forest Act which declared the effect of the rules, it was held that the rules when made did not become part of the Act. That was apparently because of the specific provisions of Section 77 which while declaring that the rules ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gument that Officers functioning as District Judge or Additional District Judge are in fact not so, would not be relevant for interpreting the law, though it may be relevant for other grounds. Thus viewed, the argument that the Officers are in fact not Additional Collectors would not be relevant for interpreting the Rule. 94.The North Regional Bench in M/s Khatri Biri Works, Beawar v. Collector of Central Excise, Jaipur case by its order which has led to the present reference, in para 5 of the order, found "For the purposes of Central Excise Rules, however, he (Additional Collector) is a Collector" but the Bench held that he is not Collector within the scope of Section 33 of the Act. The reasons which weighed with the Bench for coming to this finding are : Additional Collector does not have unlimited powers but(i) reduced powers; and in relation to orders or decisions in adjudication powers to(ii) Additional Collector can only flow from the powers vested in the Board by virtue of proviso to Section 33. Now if the Additional Collector by virtue of rules is a Collector, the fact that his powers have been curtailed would not effect the interpretation of Rules. Besides, when th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate Tribunal. 96.The larger Bench has held several hearings. Shri K. Narasimhan, President of the Bar Association, Shri R.K. Jain, Secretary of the Bar Association and Shri D.N. Kohli, Customs and Excise Consultant, have very ably assisted the Bench as Intervener advocates. Shri Harbans Singh appeared on behalf of the original appellants and the Department was represented by the Senior Departmental Representative Shri Yuvraj Gupta. The Bench had also the benefit of considering the judgment of the Calcutta Regional Bench consisting of Member (J) Shri K. Gopal Hegde and Member (T) Shri G. Sankaran in the matter relating to M/s National Jute Manufacturing Corporation Ltd., Katihar v. Collector of Central Excise, Calcutta which substantially involved similar issues as have been included in the reference to the larger Bench. 97.The Intervener advocates and the aforesaid judgments of the Calcutta Regional Bench as well as the earlier North Regional Bench have made out a strong case for the view that Additional Collector of Central Excise is an officer of the Central Excise Department lower in rank than the Collector. He is subordinate to the Collector not only in the administrativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /80-Ad. IV, dated 7-8-1981, one post of Deputy Collector (Technical) in the Hqrs. Office of this Collectorate is designated as Additional Collector. Accordingly, in supersession of this Office Establishment Order No. 77/1981, Shri P.R.V. Ramanan, presently working as D.C. (Tech) is hereby re-designated as Additional Collector with immediate effect. Sd/- (BHARAT B. JULKA) COLLECTOR C. No. II-39 (29) Est. I/81 Dt.10-9-1981 99.It is admitted by all parties that Collector is at the apex of the Central Excise Administration in the field and is in overall charge of the Collectorate within his jurisdiction. In the matter of ranking, he is the head of the hierarchy of officers in his Collectorate. It is in that capacity that he designates a Deputy Collector working under him as an Additional Collector of Central Excise. It is, however, obvious that an officer designated or appointed by a Collector of Central Excise has necessarily to be lower in rank and subordinate to the Collector himself. The Central Government does not appoint any person as Additional Collector. According to the well known principle delegatus non potest delegare, the Central Government could not in any case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4.In the absence of such a statutory definition, it would not be proper to enlarge the expression `Collector for the purposes of the Act. 105.The Intervener Advocates drew attention of the Bench to the provisions of Sections 33, 35-E and 37A of the Act, which are reproduced below :- "33.Power of Adjudication. - Where by the rules made under this Act anything is liable to confiscation or any person is liable to a penalty, such confiscation or penalty may be adjudged - without limit, by a Collector of Central Excise;(a) upto confiscation of goods not exceeding five hundred rupees(b) in value and imposition of penalty not exceeding two hundred and fifty rupees, by an Assistant Collector of Central Excise. Provided that the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) may, in the case of any officer performing the duties of an Assistant Collector of Central Excise, reduce the limits indicated in Cl (b) of this section and may or on any officer the powers indicated in Cl (a) or (b) of this section." "35-E.Powers of Board or Collector of Central Excise to pass certain orders. - (1) The Board may, of its own motion, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise empowered in this behalf by the Central Government any power exercisable by a Deputy Collector of Central(c) Excise under this Act may be exercisable also by an Assistant Collector of Central Excise empowered in this behalf by the Central Government and any power exercisable by an Assistant Collector of Central(d) Excise under this Act may exercisable also by a gazetted officer of Central Excise empowered in this behalf by the Board." 106.The above section lay down in detail the statutory powers of Collector. They also prescribe the mode, manner and extent to which these powers of Collector can be conferred on or delegated to other officers of Central Excise. For example, powers of adjudication of confiscation and penalties without limit under section 33(a) of the Act can be conferred on other officers by the Central Board of Excise and Customs (and not by rules issued by the Central Government). Powers under Section 35-E of the Act can be exercised only by the Board or the Collector of Central Excise (and not by any other officer). Under Section 37-A of the Act, the Central Government may delegate powers of the Board to a Collector of Central Excise empowered i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Customs Act, the Central Government has by notifications delegated the powers of the Board under Sections 9, 61, 74, 105, 109 and 113 to various Collectors of Customs. These delegations of powers on the Collectors would not in any manner change their rank as officers subordinate to the Board. Both in law and in fact Collectors of Customs would continue to be subordinate to the Board. Likewise, conferment of powers or delegation of powers of the Collector to other officers of Central Excise would not in any manner disturb the relative position or rank of such officers in the Department either administratively or functionally as envisaged in the Central Excises and Salt Act. 109.The Intervener Advocates have pointed to a serious anomaly in the matter of powers conferred on Additional Collector of Central Excise under proviso to Section 33 of the Act. It would be observed that such powers have been conferred only on the Additional Collector of Central Excise, Bhubneshwar, Orissa and Additional Collector of Central Excise, Calcutta and not on any other Additional Collector in the Department. Such powers, however, have been conferred on all Deputy Collectors, Assistant Collectors an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cided by the Board that the Additional5. Collector should continue to exercise the various powers under the rules which have been delegated to the Deputy Collector in terms of Board's F. No. 215/3/80-CX. VI, dated 12th February, 1981 and the Collector should not delegate any other powers under the Central Excise Rules to the Additional Collector for the time being." 111.It would be observed that the powers of Additional Collectors, Deputy Collectors, Assistant Collectors and Superintendents of Central Excise have all been severely restricted or limited by the Board. None of these officers can exercise these powers of adjudication, of confiscation and penalties `without limit' under Section 33(a) of the Act. 112.The Intervener Advocates have cited the following cases to support their view that statutory powers invested with an officer can be exercised only by an officer who is appointed as such. These authorities are relevant and are accordingly stated below :- "AIR 1965 SC 1619 : Ajaib Singh : Appellant v. Gurbachan Singh and Others : Respondents : In this case the Supreme Court has ruled that Additional District Magistrate would continue to be lower in rank than the Distri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to the Central Government or Secretary to the State Government, as the case may be. 114.The Advocate for the Appellants during the course of the arguments has drawn the attention of the Bench to Rule 2(ii)(A) and 2(ii)(B) of the Central Excise Rules, 1944. This rule before its amendment by Notification No. 110/81-C.E., dated 29-4-1981 read as follows :- "Rule 2.Definitions. - --In these rules, unless there is anything repugnant in the subject or context - "Collector" means -(ii) in relation to excisable goods(A) other than salt - (Clause a to y relate to territorial jurisdiction of various Collectors of Central Excise). (B)in relation to salt, the Salt Commissioner, and includes any officer specially authorised under Rule 4 or 5 to exercise throughout any State or any specified area therein all or any of the powers of a Collector under these rules" 115.The above clause (ii)(B) was substituted by Notification No. 110/8-C.E., dated 29-4-1981 which is reproduced below :- "Ministry of Finance (Department of Revenue) Notification New Delhi, the 29th April, 1981 CENTRAL EXCISES G.S.R. 316(E). - In exercise of the powers conferred by Section 37 of the Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lt". However, even if for the sake of argument the point made by the advocate for the appellants is accepted, it is clear that this sub-clause is intended to expand the meaning of the expression `Collector', only for the purposes of the rules and that too only in relation to the powers of the Collector excisable under the rules. 120.The above interpretation of the Advocate for the appellants and the Senior Departmental Representative would also lead to an absurdity, inasmuch as not only Additional Collectors but also other officers of Central Excise who are specially authorised under Rules 4 and 5 to exercise all or any powers of a Collector under the Rules would be included in the term `Collector' and as such be entitled to exercise the powers of a Collector both under the rules as well as under the Act. 121.Under Rule 4, large number of officers of diverse designations and ranks have been given the powers of Collectors by the Board, e.g. Director of Inspection, Director of Revenue Intelligence, Director of Statistics and Intelligence, Chief Chemist, Central Revenues Control Laboratory, etc. Under Rule 5, powers of Collectors have been delegated by Collectors to Central Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... `Collector' for the purposes of the Central Excise Act. 128.The Intervener Advocates in this connection have referred to Section 38 of the Act before its amendment, according to which all such rules and notifications had the effect as if enacted in the Act. The words, namely, "all such rules and notifications shall thereupon have effect as if enacted in the Act" have now been omitted in the present Section 38 of the Act. Section 38 of the Central Excise Act as it read before the present Section 38 of the Act are reproduced below :- "38.Publications of rules and notifications. -All rules made and notifications issued under this Act shall be made and issued by publication in the Official Gazette. All such rules and notifications shall thereupon have effect as if enacted in this Act : Provided that every such rule shall be laid as soon as may be after it is made before Parliament while it is in section, for a total period of thirty days which may be comprised in one session or in two or more sessions, and if before the expiry of that period, Parliament makes any modification in the rule or directs that the rule should not be made, the rule shall thereafter have effect only in s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d not take away what was conferred by the Act or whittle down its effect. [1971 (82) ITR 44 - Commissioner of Income-tax, Andhra Pradesh v. Taj Mahal Hotel] By-laws made in pursuance of statutory power must not go beyond nor be repugnant to the enactment under which they are made. (Craies on Statute Law 7th Edition Page 329) Statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made. It is not correct to widen the terms used in the statute simply because the statute does not define any expression. It is an important rule of construction that if the words of the statute are clear and unambiguous, it is the plain duty of the Court to give effect to that whatever may be the consequences, for in that case, the words of the statute speak the intention of the legislature. (Craies on Statute Law 7th Edition Pages 65 and 69) The Gujarat High Court has stated that any rule framed under a statute and even having force of law cannot restrict or narrow down the scope of the section. If there would be a conflict between a section and a rule or between the statute and a rule enacted under it, obviously the statute must prevail over the ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Additional Collectors are subordinate to the Collectors of Central Excise and are known as such by the trading public, industry and the taxpayers who have to deal with Central Excise Department every day. Such of the statutory powers like adjudication of confiscation and penalties under Section 33(a) of the Central Excise Act as have been conferred on some Additional Collectors, viz. Additional Collector of Bhubaneswar and of Calcutta have also bee severely limited and restricted by the Board. Additional Collectors of Central Excise, therefore, cannot, either in law or in fact, rank equal to Collectors of Central Excise. Administratively they are subordinate to the Collector under whom they are posted and who designates them as Additional Collector from amongst the Deputy Collectors under him. I find considerable force in the arguments advanced by the Intervener Advocates. I entirely agree with the judgment of the earlier North Regional Bench [consisting of Member (Judicial) Shri A.K. Srinivasamurthy and Member (Technical) Shri A.J.F. D'Souza] and the judgment of the Calcutta Regional Bench [consisting of Member (Judicial) Shri A. Gopal Hegde and Member (Tech) Shri G. Sankaran] th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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