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TMI Blog2000 (5) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... nd pass orders in proceedings where the demand of duty was for a period of more than six months. From the facts as recorded in para 3 of the Tribunal's decision aforesaid, it is seen that after ignoring the order, dated 29-12-1987 of the Superintendent of Central Excise, the Collector of Central Excise independently exercised the jurisdiction under the Proviso to Section 11A of the Central Excises Act, 1944 (hereinafter referred to as the 'Act'), for the same period by the issue of a show cause notice, and then proceeded to pass the adjudication order. After making a reference to an earlier decision of the Tribunal in the case of Akola Oil Industries Ltd. v. C.C.E., Nagpur - 1991 (53) E.L.T. 136 (Tribunal) = 1991 (37) ECR 144 (CEGAT SBC) the Bench noted that when the order of the authority suffers from an inherent lack of jurisdiction in is ab initio void, nonest in the eye of law and consequently a nullity, the same would not give rise to legal consequences. The Bench observed that such an order was different from a wrong order passed by an officer, who was competent to pass such an order and that such a wrong order could be reviewed. It was added that if an officer who has no jur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dictum as contained in Section 8 of the Central Excises Salt (Amendment) Act, 1985 (hereinafter referred to as the 'Amendment Act of 1985') the proceedings pending before the Asstt. Collector of Central Excise or any officer lower in rank, stood transferred to the Collector of Central Excise. Even when hearing had been granted by the Asstt. Collector of Central Excise, the pending proceedings were to be transferred to the Collector of Central Excise. The show cause notice remained pending for adjudication by the competent authority and the order passed by the authority without jurisdiction was no order in the eye of the law. He pleaded that no sanctity could be imparted to the nonest order by reviewing the same. He also referred to the Administrative Law by Sir William Wade. Both the sides referred to the case law in support of their rival contentions. These will be discussed at appropriate place in this order. 3.We have carefully considered the matter. For our consideration is the status of the order passed by a Central Excise Officer after he had been divested of the power to deal with the subject. 4.Under Section 11A of the Act as in force prior to 27-12-1985, where a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d transferred to the Collector of Central Excise, from the Asstt. Collector of Central Excise, as on 27-12-1985. The Legislative mandate was couched in absolute terms - "shall stand transferred". By legislative mandate the proceedings in which the extended period of limitation, had been invoked stood transferred on 27-12-1985 from the Asstt. Collector of Central Excise to the Collector of Central Excise. On that date - that is on 27-12-1985 - such proceedings were no longer pending with the Asstt. Collector of Central Excise. He has no power and jurisdictioan to proceed with such proceedings or matter. 6.It is an established position of law that in the case of ousting of jurisdiction, the authority whose jurisdiction has been ousted will have no power to pass the orders. In the case of Commissioner of Income Tax v. Dhadi Sahu - 1993 (199) ITR 610 (S.C.), the Supreme Court held that when a provision is made for change over of the proceedings from one forum to the other forum, then the jurisdiction of the forum where the proceedings were pending at the time of the change in the law, is clearly ousted. The Apex Court referred to their earlier decision in the case of Mohd. Idris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A defect of jurisdiction whether it is pecuniary or territorial or whether it is in respect of the subject matter of the action, strikes at the very authority of the Court to pass any decree, and such defect cannot be cured even by consent of parties." (Refer Deep Chand Kothari v. Commissioner of Income Tax - 1988 (171) ITR 381 (Rajasthan)." In the case of Rungta Sons Pvt. Ltd. v. Collector of Customs, Visakhapattanam - 1986 (23) E.L.T. 14 (Calcutta), the Calcutta High Court had held that when a decision is without jurisdiction such adjudication order is null and void and nullity cannot be cured by the appellant. In the case of Dr. S.K. Jhunjhunwala v. Collector of Customs, New Delhi - 1985 (19) E.L.T. 521 (Tribunal), the Tribunal had held that where there is a want of inherent jurisdiction then the order must be treated as nullity in the eyes of law. 9.After 26-12-1985, the Asstt. Collector of Central Excise was devoid of the inherent jurisdiction and power to deal with the matter in which extended period of limitation had been invoked. By legislative mandate such a matter automatically stood transferred from him. If even then he, without power and authority, passed any or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose orders was further appealable to High Court, Supreme Court. The Collector of Central Excise (Appeals) cannot even remand the matter to the Collector of Central Excise to act as original authority. Thus, by giving cognizance to the order passed by the Asstt. Collector of Central Excise in dis-regard of the legal provisions as mandated by the Legislature the role of the Collector of Central Excise as an adjudicating authority was to be completely shut out and the whole process of the administration of justice will get disturbed. The legislative, intention will stand completely frustrated. 10.Under Section 8 of the Amending Act of 1985, it was made clear that pending proceedings stood transferred from the Asstt. Collector of Central Excise to the Collector of Central Excise. A court or Tribunal deciding a matter must not only be possessed of jurisdiction initially but should also be clothed with the power to decide the matter when the final matter is passed. (refer Commissioner of Income Tax v. Bhuwaneshwar Singh —1992 (196) ITR 403 (Allahabad); Commissioner Wealth Tax v. Hemant Pat Singhani - 1992 (197) ITR 183 (Allahabad); Commissioner of Income Tax v. Metal Goods Mfg. Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erstwhile Section 130 of the Customs Act, the order of clearance passed under Section 47 of the said Act of 1962. In that case, clearance for home consumption of the imported refined, bleached and deodorised (RBD) palm oil in stainless steel containers had been allowed under Section 47 of the Customs Act, and thereafter without revising under Section 130 of the said Act, the order under Section 47, show cause notice under Section 28 and Section 124 had been issued. The Supreme Court held that the High Court was in error in coming to the conclusion that no show cause notice under Section 28 of the Customs Act could have been issued until and unless the order under Section 47 had been first revised under Section 130. In para 6, the Supreme Court held as under :- "6. The case of the appellants in the show cause notices is that the stainless steel containers in which the said oil was imported were banned, that the stainless steel containers were deliberately camouflaged by painting them to resemble mild steel containers, and that this was done with a view to enabling their clearance. An clearance order under Section 47 obtained by fraudulent means such as this (if it, in fact, be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llegal order of the Asstt. Collector of Central Excise would have been to cloth it with a legality. The jurisdiction the Collector of Central Excise as a original authority would stand completely ousted as the appeal will be only to the Collector of Central Excise (Appeals). The order of the Collector of Central Excise (Appeals) was also not final and the appeal procedure would have completely by passed the Collector of Central Excise as on adjudicating authority. 13.We may also refer to the other case law referred to by the counsel for the appellants. The Commissioner of Income Tax, Delhi, Rajasthan and New Delhi v. Rao Thakur Narayan Singh, Ajmer - AIR 1965 SC 1421. The issue for consideration in that case was how far and to what extent a final order made in the earlier proceedings under Section 34 of the Income Tax Act, 1922 would be binding on the Income Tax Officer in the subsequent proceedings under the said Section. It was a clear case of mistake for the Tribunal to set aside the order of the re-assessment in respect of the interest income though its validity to that extent was not disputed. The final decision had been validly made in respect of questions that di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce Regulations it need not be settled. This decision also is of no help to the appellants. State of Kerala v. M.K. Kunhi Kannan Nambiar Manjori Manikoth Naduvil (Dead) -AIR 1996 SC 906. The matter related to the determination of ceiling area under the Kerala Land Reforms Act by the Taluk Land Board Tali Paramba. The Board under order, dated 28-6-1977 had rejected the impleadment of the sisters of the first respondent and held that the tenancy put-forward was a 'Collusive' one. It was in this background that the Supreme Court observed "in our opinion even void order or decision rendered between parties cannot be said to be non-existent in all cases and in all situations. Ordinarily such an order will in fact be effective inter-parties until it is successfully avoided or challenged in higher forum." We find that in this case the Supreme Court had observed that in their opinion this was not a case where the infirmity was fundamental. We consider that none of these decisions is applicable to the facts before us. 14.A reference has been made to the Tribunal's decision in the case of Akola Oil Industries Ltd., Akola v. CCE, Nagpur - 1991 (53) E.L.T. 136 (Tri.) = 1991 (37) ECR ..... X X X X Extracts X X X X X X X X Extracts X X X X
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