1. Facts of the case have been stated in the appeal memorandum filed by the Collector of Central Excise, Madras, the relevant portions of which are reproduced below :- "M/s. Little's Oriental Balm and Pharmaceuitcals Limited, Madras manufactured 'Little's Oriental Balm' a pain balm as patent and proprietary medicine falling under T.I.14E of the Central Excise Tariff till the end of financial year 1979-80. Subsequently in the year 1980-1981 the company classified the pain balm under T.I. 68 as an Ayurvedic Medicine. The ingredients of the balm manufactured prior to 1980-81 and after 1980-81 are as follows :- On examining the classification of the little oriental balm, the Assistant Collector of Central Excise, Madras IV Division observed that the main ingredients of the balm were mentioned in the Unani Authority and that the appearance of Eucalyptus Oil cannot affect the indigeneous nature of the balm. The Assistant Collector held that the balm is not an allopathic preparation and therefore, it gets excluded from the purview of T.I. 14E. The Assistant Collector accordingly vide Order-in-Original C.No. AC/8/81, dated 28-7-1981 classified the balm under T.I. 68 and allowed the total exemption under Notification 55/75.
The Collector of Central Excise, Madras in exercise of the powers vested in him under the erstwhile Section 35A of the Central Excises and Salt Act, 1944 called for and examined the case records pertaining to the above Order-in-original. As it appeared to the Collector that the Order of the Assistant Collector was not proper, the Collector issued a show cause notice asking the company to show cause as to why the pain balm should not be classified under T.I. 14E and why differential duty on clearances made from 1-4-1980 should not be collected. After considering the company's reply, the Collector dropped the proceedings initiated against M/s. Little's Oriental Balm and Pharmaceuticals Limited vide Order-in-review C.No. IV/16/787/81-VC, dated 5-1-1985.
The Central Board of Excise and Customs, in exercise of the powers vested in the Board under Section 35E(1) of the Central Excises and Salt Act, 1944 called for and examined the records pertaining to the order-in-review No. IV/16/787/81-VC, dated 5-1-1985 passed by the Collector. Upon such examination, the Board has found that the said Order-in-review is not a legally correct and proper order and has accordingly directed the Collector of Central Excise, Madras vide Board's letter F.No. 199/30/85 A.U. (BMB), dated 28-8-1985 to file an application before the Customs, Excise and Gold (Control) Appellate Tribunal." Accordingly, this appeal has been filed as an application under Section 35E(4) of the Central Excises and Salt Act, 1944 as stated in letter No. V/14E/2/174/85 JC, dated 6-11-1985 from the Collector of Central Excise, Madras to the Assistant Registrar, Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi read with the Order No.42-R/85, dated 28-8-1985 of the Central Board of Excise & Customs, New Delhi and the application in Form E.A. 5.
2. When this appeal came for hearing before us, the learned advocate and the learned DR argued only on the preliminary point as to whether the appeal filed by the Collector before this Tribunal is maintainable in law. The learned advocate argued that by the order-in-review dated 3/5-1-1985, the Collector of Central Excise, Madras dropped the review proceedings initiated under Section 35A of the Central Excises and Salt Act, 1944 (hereinafter referred to as 'Act') against the order-in-original No. AC/8/81, dated 28-7-1981. The aforesaid order-in-review passed by the Collector of Central Excise was reviewed by the Central Board of Excise & Customs under Section 35E(1) of the Act and by its order dated 28-8-1985 the Board directed the Collector to apply to this Tribunal for the determination of the points mentioned in paragraph 4 of the Board's order which was directed against the Collector's order-in-review dated 3/5-1-1985. He has argued that under Section 35E(1), the Central Board of Excise and Customs could review an order passed by a Collector of Central Excise as an adjudicating authority and direct such Collector to apply to the Appellate Tribunal for determination of such points arising out of the decision or order passed by the Collector as might be specified by the Board in its order. In the present case, the Collector of Central Excise, Madras did not pass his order dated 3/5-1-1985 as an adjudicating authority, but he passed the said order as a reviewing authority under Section 35A of the Act, as it then existed. Therefore, the Board could not legally review the Collector's order-in-review under Section 35E(1) of the Act, Further, even under Section 35B(1) an appeal could not be filed before this Tribunal against an order-in-review passed by the Collector under Section 35E(2) of the Act. He has, therefore, argued that the present appeal is not maintainable in law. Shri Sundar Rajan has drawn our attention to definition of "adjudicating authority" as laid down in Section 2(a) of the Act, which says that "Adjudicating authority" means any authority competent to pass any order or decision under this Act, but does not include the Central Board of Excise and Customs constituted under the Central Board of Revenue Act, 1963 (54 of 1963), Collector of Central Excise (Appeals) or Appellate Tribunal". In view of this difinition, he has argued, the order passed by the Collector in this case was an order of an adjudicating authority. He has, therefore, submitted that the appeal is legally maintainable. Controverting this argument of the learned DR, Shri Lakshmikumaran has referred to the opening sentence of Section 2 of the Act which says "unless there is anything repugnant in the subject or context". He has stated that Section 35B(l)(d) has provided that any person aggrieved by an order passed by the Board or the Collector of Central Excise under Section 35A, as it stood immediately before 11-10-1982, can appeal to the Appellate Tribunal against such an order. If Shri Sundar Rajan's argument is accepted, then Clause (d) of Section 35B(1) of the Act will become otiose.
3. We have carefully considered the issue raised before us. The contentions made by the learned advocate represent the correct position of law. Section 35E(1) provides that the Central Board of Excise & Customs may call for and examine the records of any proceeding in which a Collector of Central Excise as an "adjudicating authority" has passed any decision or order under the Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such Collector to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the Board in its order. It is very clear from this provision that the Board may review an order passed by a Collector of Central Excise if such an order has been passed by the Collector as an Adjudicating Authority. In this case the Collector of Central Excise, Madras passed his order-in-review dated 3/5-1-1985 under the erstwhile Section 35A of the Act. He passed this order as a reviewing authority and not as an adjudicating authority.
Section 35B of the Act provides that 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; (d) an order passed by the Board or the Collector of Central Excise either before or after the appointed day under Section 35A as it stood immediately before that day.
If Shri Sundar Rajan's argument that "Adjudicating Authority" covers a Collector of Central Excise who passed order-in-review under the erstwhile Section 35A of the Act as it stood prior to 11-10-1982, then there was no necessity of making a separate provision in Clause (d) of Section 35B(1) as quoted above. Therefore, in our view, an adjudicating authority is the original authority and not a reviewing authority who reviews the order passed by an original authority to examine its legality or propriety.
4. The learned advocate has brought to our notice an earlier decision of this Tribunal in the case of Collector of Central Excise, Pune v.Formica India Ltd., reported in 1988 (38) E.L.T. 526 (Tribunal) wherein a similar point was decided by the Tribunal. In paragraph 6 of the said order it was observed by the Tribunal that "The order of the Collector shows that he was exercising his revisionary power under Section 35A(2) of the Act as it then stood. Distinction and difference between an adjudicating authority and a revising authority is well understood and the role of adjudicating authority in the field of central excise is comparable to trial court in civil law and criminal law". It was held by the Tribunal that the Board's jurisdiction under Section 35E(1) of the Act was limited to cases where the Collector passed an order as an adjudicating authority and not as a revisionary authority. Our view is the same. Since in the present case the Collector of Central Excise, Madras passed his order dated 3/5-1-1985 as a reviewing authority and not as an adjudicating authority, the Board could not exercise its review power under Section 35E(1) of the Act to review said order of the Collector and issue direction to file an application under Section 35E(4) before this Tribunal. In view of this legal position, the application filed by the Collector of Central Excise, Madras before us is not maintainable.