1. The Collector of Customs & Central Excise Rajkot has filed this application under Section 82B of the Gold (Control) Act, 1968 to refer to the Hon. Gujarat High Court at Ahmedabad, the point of law which has arisen out of the order of the Tribunal No. 1236/85WRB dated 11.10.1985, in the appeal of Shri Naginkumar Mamaiyabhai Jagda registered under G.C. (BOM) A No. 121/85. Under aforesaid order this Bench directed that the appeal of Shri Naginkumar Mamaiyabhai Jagda be heard and disposed of by the Collector of Customs (Appeals) as the order under which Shri Naginkumar felt aggrieved was passed by the Additional Collector of Central Excise, Rajkot. The Tribunal had held in earlier similar cases that an appeal against the Additional Collector's order in such circumstances would lie to the Collector (Appeals) and not to the Tribunal. Hence the aforesaid decision of the Tribunal in the order dated 11.10.1985 was in keeping with identical orders in the past.
2. On behalf of the applicant, learned SDR Shri Senthivel stated that the application of the Collector had been filed in time and though the prayer in the Annexure A to the application was manifold, it essentially boiled down to determination of the single question as mentioned under Serial No. 8(1) of the proforma for filing the application. This was point 2(ii) of Annexure A to the application and it involved determination of the question whether the Collector of Central Excise included Additional Collector also for the purpose of exercising jurisdiction under the Gold (Control) Act. This had also been specifically brought out in para 2(vii) of Annexure A of the Collector's Application. Arguing the application further, Shri Senthivel submitted that the Tribunal's decision in its Order No.1236/85 WRB dated 11.10.1985 rested mainly on two grounds. One was the Notification No. 18/80 GC dated 27.12.1980 as amended and the other was the fact that there was no definition of Additional Collector of Central Excise or Additional Collector of Customs under the Gold (Control) Act. Shri Senthivel submitted that the earlier decisions of the Tribunal in the case of Appeal GC(T) BOM 2/82 dated 25.11.1983 in the case of Smt. Ashibai C. Oswal was based on the interpretation of the Notification No. 18/80 GC dated 27.12.1980. In this case, the Tribunal held that the Additional Collector of Central Excise was lower in rank than the Collector of Central Excise firstly because the Collector exercised unlimited powers of adjudication under Section 78(a) and secondly because this Section specifically mentioned ranks of the officers who were to exercise powers as Gold Control Officers and the Notification was issued under Sub-section (b) which made distinction between Gold Control Officers not below the rank of a Collector and such officers not below the rank of a Superintendent of Central Excise. Continuing his arguments, Shri Senthivel submitted that the plank on which the Tribunal's decision rested was removed under Notification S.O. 417(E) dated 6.6.1984 which deleted the entry at Serial No. 3 of the table annexed to the Notification fixing the powers of adjudication of an Additional Collector. Therefore, any inference that the Additional Collector was lower in rank than the Collector was rectified by the aforesaid Notification dated 6.6.1984 Shri Senthivel further submitted that Section 78 of the Gold (Control Act) did not empower the Central Government to determine the rank of a Gold Control officer Section 78 was meant for distribution of adjudication powers Seen sets of Gold Control Officers. The "Gold Control Officer" was defined under Section 2 and under Section 4 the Central Government had appointed various officers to exercise powers of Gold Control Officers.
He further argued that the Gold (Control) Act was a self-contained code. Under Section 81, appeals to the Appellate Tribunal lay inter alia from the order passed by the Collector of Central Excise or Customs as an adjudicating authority The Notifications under Sections 4 and 7 of the Gold (Control) Act were really not meant to determine the Appellate jurisdiction of the authorities in this behalf. Shri Senthivel referred to the discussions at length in the order of the Tribunal in the case of S. Kumar and Ors. dated 1.7.1983 in 1983 ELT 1057 : 1983 ECR 846 D under which the Tribunal held that the appeals against the orders of the Additional Collector of Central Excise lay to the Tribunal and not to the Collector of Central Excise (Appeals). Shri Senthivel further pointed out that under this order the Tribunal had discussed the rank of Additional District Judge vis-a-vis the District Judge vide Para 70 of the order and the ratio of this decision will apply to the present case Shri Senthivel further argued that the decisions of the Supreme Court in AIR 1965 S.C. 1619 and mentioned on page 11 of the Tribunal's order dated 11.10.1985 would not apply as these judgements were examined by the Larger Bench and not found relevant vide Paras 84 and 85 of the Order dated 17.1983. Shri Senthivel submitted that after the issue of the Notification dated 6.6.1984 deleting the entries at Serial No. 3 of the able in Notification No. 18/80 GC dated 27.12.1980 there was no justification to treat the Additional Collector of Central Excise or Customs as lower in rank than the Collector and therefore the appeal against the Additional Collector's order in a Gold Control matter will he to the Tribunal. In this view he submitted that this point arose out of the Tribunal s decision dated 11.10.1985 and should be referred to the Hon. Gujarat High Court at Ahmedabad as per the prayer of the Collector of Customs and Central Excise, Rajkot.
3. In reply, the Learned advocate Shri N.I. Mehta contended that the Notification dated 6.6.1984 had the effect of taking away the Appellate jurisdiction of the Collector of Central Excise (Appeals) and conferring this jurisdiction on the Appellate Tribunal. He submitted that a Notification was a delegated legislation and unless there was express provision therein such delegated legislation could not confer jurisdiction or take away jurisdiction. Jurisdiction was the power of a court or an authority to decide a cause or litigation by parties. It had to be conferred by express powers or at least by clear indication.
These two-fold tests were not satisfied by the Notification dated 6.6.1984. This Notification did not take away the jurisdiction of the Collector (Appeals) and did not substitute the jurisdiction of the Tribunal in lieu thereof. Shri Mehta submitted in this behalf extracts from N.S. Bindra's Interpretation of Statutes, 6th Edition 1975 Page 206 Para 13 and page 209. Shri Mehta submitted that this would be a correct rule of interpretation of law. It would not be permissible under law for the Collector (Appeals) to exercise appellate powers against the Additional Collector's order. Besides, the Collector (Appeals) had relied on the Ministry's letter which was not quite correct. He submitted that the Tribunal had correctly deprecated this order of the Collector (Appeals). Shri Mehta further contended that no jurisdiction could be assumed by the Tribunal even by consent of the parties. Under Section 81(1)(a) only a decision of the Collector of Central Excise or Customs was appealable to the Tribunal. This Tribunal was a special organisation created for hearing appeals. In such cases, the powers of such a special Tribunal would be limited and Shri Mehta relied in this behalf on N.S. Bindra's Interpretation of Statutes, 6th Edition 1975 Page 213 a copy of which was submitted by him. Shri Mehta further discussed in this behalf the principle of presumption of ouster of jurisdiction and submitted a copy of page 211 from the same book. He contended that the presumption relating to omission of the entry at Serial No. 3 of the Notification No. 18/80 dated 20.7.1980 as amended would be against the ouster of the jurisdiction of the Collector (Appeals) which was not warranted on the basis relied upon by him. Shri Mehta contended that the correct interpretation of the amendment brought out by Notification dated 6.6.1984 was to take away the powers of adjudication from the Additional Collector of Central Excise. Shri Mehta further submitted that the Deputy Collector of Central Excise had been designated as Additional Collector of Central Excise by a simple administrative arrangement contained in the Ministry's letter dated 7.8.1981 referred to by the Larger Bench in its decision dated 1.7.1983. As opposed to this, the West Regional Bench had held in Smt.
Ashibai C. Oswalds case that the Appellate authority against the Additional Collector's order was the Collector (Appeals) vide . In addition, the North Regional Bench of the Tribunal in the case of Ramesh Kumar reported in ETR 1984 (4) November 1984 Page 694 1985 ECR 489 had held the same view. There were similar decisions reported in ECR January 1983 Page 749 D dated 3.3.1983 in the case of Kanti Prasad & Sons and in the case of Sunil Kumar Ghosh ETR 1984(3) January 84 Page 49 1983 ECR 1441 D. The Tribunal's decision mentioned in the case of Ramesh Kumar ETR 1984 1985 ECR 489 cited an earlier order of the Tribunal No. 779/83 dated 24.11.1983 which was passed by three Members of the North Regional Bench. Therefore, this question had been settled by the Larger Bench of the Tribunal. As opposed to these decisions, the Reference Application of the Collr.
cited two decisions dt. 17.3.83 & 31.5.83 in Para 2(v) of the Annexxure A to the application. These were simple matters relating to licences of dealers and these cases were therefore distinguishable from the present case which was one of an offence of adjudication of the contravention of the Gold (Control) Act. Besides the jurisdiction of the Appellate Collector was not a subject matter in those two cases mentioned in the Reference Application. These orders were also passed by a Bench of two Members while the North Regional Bench's decision dated 24.11.1983 was passed by a Bench of three Members. As regards the decision of the South Regional Bench relied upon by the Collector, Shri Mehta contended that the Bench did not pass any operational order vide Para 9, but referred the matter to the President for orders. At best this indicated a doubt in the mind of the South Regional Bench. At least at present there was no case for making reference to the High Court and Shri Mehta contended that Para 2(ii) of Annexure A to the Reference Application did not give a correct picture regarding rectification of the anomaly.
The parent acts namely, the Customs Act, the Central Excises and Salt Act and the Gold (Control) Act were not identical and the position in one cannot apply to that under the other. Under the Customs Act the definition of "Collector" includes the Additional Collector also.
Similarly, Rule 2 of the Central Excise Rules 1944 includes Additional Collector within the definition of Collector. But this would not mean that the Additional Collector was equal to Collector in status for the Gold Control purpose. Shri Mehta further submitted that the Notification No. 2319 dated 29.6.1968 mentioned in Para 2(ii) of Annexure A of the Collector's Application was issued under Section 4 of the Gold (Control) Act and this was not relevant for the purpose of determining the rank of the Gold Control Officers who exercised powers of adjudication under a different Chapter of the Act. Hence Shri Mehta submitted that there was no case for referring the question of law to the Hon. Gujarat High Court at Ahmedabad as prayed by the Collector.
4. In reply, the Learned S.D.R. contended that through the amended Notification dated 6.6.1984, the Government did not confer jurisdiction or take away the jurisdiction of any authority under the Gold (Control) Act. Shri Senthivel further explained that this was because of the respective definitions of Collector under the Customs Act and the Central Excises & Salt Act. The Collector included Additional Collector also. For the purposes of Section 80 of the Gold (Control) Act, the Tribunal in the earlier decision had held that the Additional Collector was lower in rank than the Collector and hence an appeal against the Additional Collector's order would lie to the Collector under Section 80. Section 81 provided for appeals against the Collector's order.
However, no need had been felt to define the Collector for this purpose. The Collector's definition in the parent act would hold good for this purpose. Referring to the Larger Bench's decision dated 1.7.1983, Shri Senthivel submitted that the court could not provide any meaning in case of any lacuna in law as per the decision of the Supreme Court in . He further submitted that in the other Notifications issued under the Gold (Control) Act "Additional Collector" was not mentioned. Yet, the Additional Collector exercised powers of the Collector under the Gold (Control) Act through the inclusive definition of Collector. In this view, Shri Senthivel supported the Collector's request for reference to the Hon. Gujarat High Court at Ahmedabad.
5. We have examined the submissions made on both sides. In order No.1236/85 WRB dated 11.10.1985 in Appeal C.C. (BOM) A 121/85 filed by Shri Naginkumar Mamaiyabhai Jagda we had taken into account the various provisions of the Gold (Control) Act and the Notifications issued thereunder, the Appellate provisions of the Act, etc. In this order, this Bench also relied on the identical appeal decided by the Bench on 25.11.1983 in the case of Smt. Ashibai C. Oswal in Appeal GC(T) BOM 2/82. Though this order was passed before the amendment dated 6.6.1984 in the Notification No. 18/80 GC dated 27.12.1980 deleting the entries relating to Additional Collectors, the order of this Tribunal dated 11.10.1985 held that while exercising the powers of adjudication under the Gold (Control) Act, the Additional Collector of Central Excise acted in the capacity as a Gold Control Officer and not in his capacity as an Additional Collector of Central Excise. The Tribunal also held that it was not possible to look into the provisions of the Central Excises & Salt Act but only into the provisions of the Gold (Control) Act in considering the question whether the Additional Collector of Central Excise exercising powers as a Gold Control Officer was lower in rank than the Collector. Since the Gold (Control) Act did not define Collector or Additional Collector it was not proper for the Tribunal to accept the definition of the Collector under the Central Excise Rules for the purposes of deciding the Appellate authority against the order of the Additional Collector of Central Excise in a Gold Control matter.
6. Through the present application, the Collector of Customs and Central Excise, Rajkot has made a request to refer the matter to the Hon. Gujarat High Court at Ahmedabad for clarifying the point that for purposes of Gold (Control) Act also, the Collector of Central Excise will include the Additional Collector of Central Excise. He has mainly relied on the deletion of the entry relating to the Additional Collector from Notification No. 18/80 GC dated 27.12.1980 with effect from 6.6.1984. In a way, he has sought to contend that the Notification in question was issued for defining the adjudication powers of the officers and it could not determine the rank of the officers exercising these powers. It was further argued on behalf of the Collector that the definition of Collector under the Central Excise Rules should also be acceptable in determining the rank of the Additional Collector for exercising the powers of adjudication under the Gold (Control) Act as there was no definition of Collector or other officers in the Gold (Control) Act. On the other hand, the learned advocate for the Respondent has contended that the effect of the amendment dated 6.6.1984 is to take away the powers of adjudication from the Additional Collector. This is a repetition of his earlier contention which was negatived by us in deciding the appeal. Similarly, the advocate's submission that the amendment dated 6.6.1984 ousts the jurisdiction of Collector (Appeals) and substitutes it with that of the Tribunal is also not acceptable as these matters are governed by Sections 80 and 81 of the Gold (Control) Act.
7. However, we are satisfied that though the Collector's application does not frame the exact point to be referred to the Hon. Gujarat High Court for opinion, it is clear from his submissions that the point which he intends to refer to the Hon. Gujarat High Court for opinion is the determination of the Appellate Authority against the order of the Additional Collector of Central Excise as a Gold Control Officer in an adjudication under the Gold (Control) Act. We find that this is a point of law which arises out of the order of the Bench dated 11.10.1985 and accordingly we refer the following point to the Hon. Gujarat High Court for their valued opinion: Whether an appeal against the order passed by the Additional Collector of Central Excise in his capacity as a Gold Control Officer lies to the Appellate Tribunal.