Full Judgment
2. The Commissioner of Central Excise questioned this approval by authorising under Section 35E(2) of the Act filing of an application before the Commissioner (Appeals). The application sought classification of the product under heading 1508 of the tariff.
3. The Commissioner (Appeals) declined to entertain this application.
He said that the Superintendent of Central Excise in approving the classification has not functioned as an adjudicating authority and therefore the provisions of Sub-section (2) of section 35B of the Act would not be applicable. Rule 173B designated the Assistant Commissioner, the proper authority for approving classification list.
The power to approve the classification list, in limited circumstances, has been delegated to the Superintendent of Central Excise quoting a trade notice 51/92 dated 11-11-1992 (issuing Commissioner is not specified). The Commissioner (Appeals) said that the Superintendent could approve tlie classification list only in two circumstances - when only the number of notification is changed on account of budget etc.
without affecting the classification of the goods earlier approved, and, when the rate of duty in the notification is changed without affecting any other aspect of the classification of the goods earlier approved. He therefore concluded that the approval by the Superintendent did not relate to the classification of the goods, and he has therefore not acted as an adjudicating authority by approving the classification.
4. The appeal before us questions this view on the ground that the Superintendent has been delegated the power to approve the classification list, and that he has therefore acted as an adjudicating authority and on the further ground that the dismissal of the appeal by the Commissioner (Appeals) is on technical ground.
5. The appeal has not enclosed the trade notice 51/92 or the Board's instructions on which it is based on, nor could the departmental representative could produce this. However, the appeal does not challenge the Commissioner (Appeals) view that the proper officer, designated for the purpose of Rule 173B was the Assistant Commissioner.
Nor does it dispute the correctness of the statement that the function of the Superintendent was limited to according approval in the two sets of circumstances specified by him. We must therefore take this statement to be correct. It would then follow that the Superintendent, while according the approval to the classification list did not approve the classification under heading 1504.00, as a conscious act after application of mind. He need not have applied his mind on this aspect, since he was not authorised to approve the classification in any manner. His function in approving the classification list therefore would not extend to approval of the classification. If he was of the view that the classification was to be altered, he would have had to refer the matter to the Assistant Commissioner, who alone could alter the classification. It is also clear that the classification claimed would not have been for the first time, since the Superintendent could not approve the classification. Therefore, the Commissioner's view that the Superintendent did not approve the classification of the product and his act of approval of the list did not extend to this cannot be interfered with.
6. We also cannot agree that this is a technical objection. Questions relating to jurisdiction cannot be brushed aside as technical.