1. M/s. Indian Aluminium Cables Ltd. have filed an appeal being aggrieved from the order passed by the Collector of Central Excise (Appeals), New Delhi.
2. Briefly the facts of the case are that the appellants had filed price lists Nos. 4/87-88, dated 26th February, 1988, No. 5/87-88, dated 15th March, 1988, No. 6/87-88, dated 15th March, 1988, No.1/88-89, dated 7th April, 1988 and 2/88-89 dated 2nd May, 1988. The Assistant Collector had approved the price lists provisionally and the Superintendent had intimated to the appellants vide letter dated 5th September, 1988. Being aggrieved from the aforesaid order the appellants had filed an appeal before the Collector of Central Excise (Appeals). The learned Collector of Central Excise (Appeals) had not entertained the appeal filed by the appellants on the ground that the price lists were yet to be finally approved and the assessments were provisional and as such the appeal was infructuous and had dismissed the same.
3. Being aggrieved from the aforesaid order, the appellants have come in appeal before the Tribunal.
4. Shri V. Sridharan, the lerned Advocate, has appeared on behalf of the appellants and Shri A.S.R. Nair, the learned Senior Departmental Representative on be-half of the respondent. At the outset of the hearing, the Bench had pointed out to Shri V. Sridharan, the learned Advocate, that for hearing the stay application, he has to satisfy that the appeal is maintainable and to this Shri Sridharan, the learned Advocate stated that the appeal is maintainable. He has referred to Section 35 of the Central Excises and Salt Act, 1944 and states that the appeal is maintainable in respect of any decision or order passed by the Central Excise Officer lower in rank than a Collector of Central Excise. The matter before the Tribunal is a decision/order passed by the Assistant Collector and rejected by the Collector of Central Excise (Appeals). In support of his argument, Shri Sridharan has relied on a Gujarat High Court judgment in the case of Jamnadas Chhotalal Desai and Others v. C.L. Nangia and Others reported in AIR 1965 Gujarat 215 and has laid special emphasis on para No. 23 of the said judgment. He has stated that on merits, the applicants have got a good case. There is no demand. There is recurring effect and as such stay order for future clearances be granted.
5. Shri A.S.R. Nair, the learned Senior Departmental Representative, has opposed the grant of stay and has stated that since a provisional assessment was made, no appeal is maintainable against a provisional assessment order. He has stated that since no appeal lies and as such no stay order can be passed.
6. We have heard both the sides and have gone through the facts and circumstances of the case. Filing of an appeal is a right created by the statute. Chapter VI-A of the Central Excises and Salt Act, 1944 relates to the filing of the appeals before the Collector of Central Excise (Appeals) as well as the Tribunal. Sub-section (1) of Sections 35 and Section 35B of the Central Excises and Salt Act, 1944 are reproduced below :- "35(1). Any person aggrieved by any decision or order passed under this Act by a Central Excise Officer lower in rank than a Collector of Central Excise may appeal to the Collector of Central Excise (Appeals) [hereinafter in this Chapter referred to as the Collector (Appeals)] within three months from the date of the communication to him of such decision or order : Provided that the Collector (Appeals) may, if he is satisfied that the appellant was prevented by sufficient cause from presenting the appeal within the aforesaid period of three months allow it to be presented within a further period of three months." (1) 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; (c) an order passed by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) (hereinafter in this Chapter referred to as the Board) or the Appellate Collector of Central Excise under Section 35, as it stood immediately before the appointed day; (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: Provided that the Appellate Tribunal may, in its discretion, refuse to admit an appeal in respect of an order referred to in Clause (b) or Clause (c) or Clause (d) where - (i) in any disputed case, other than a case where the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or (ii) the amount of fine or penalty determined by such order, does not exceed ten thousand rupees.
(2) The Collector of Central Excise may, if he is of opinion that an order passed by the Appellate Collector of Central Excise under Section 35, as it stood immediately before the appointed day, or the Collector (Appeals) under Section 35A, is not legal or proper, direct a Central Excise Officer authorised by him in this behalf (hereafter in this Chapter referred to as the authorised officer) to appeal on his behalf to the Appellate Tribunal against such order.
(3) Every appeal under this Section shall be filed within three months from the date on which the order sought to be appealed against is communicated to the Collector of Central Excise, or as the case may be, the other parly preferring the appeal.
(4) On receipt of notice that an appeal has been preferred under this Section, the party against whom the appeal has been preferred may, notwithstanding that he may not have appealed against such order or any part thereof, file, within forty-five days of the receipt of the notice, a memorandum of cross-objections verified in the prescribed manner against any part of the order appealed against and such memoran-dum shall be disposed of by the Appellate Tribunal as if it were an appeal presented within the time specified in Sub-section (3).
(5) The Appellate Tribunal may admit an appeal or permit the filing of amemorandum of cr,oss-objections after the expiry of the relevant period referred to in Sub-section (3) or Sub-section (4), if it is satisfied that there was sufficient cause for not presenting it within that period.
(6) An appeal to the Appellate Tribunal shall be in the prescribed form andshall be verified in the prescribed manner and shall, except in the case of an appeal referred to Sub-section (2) or a memorandum of cross-objections referred to in Sub-section (4), be accompanied by a fee of two hundred ruppes." A simple perusal of Sub-section (1) of Section 35 of the Central Excises and Salt Act, 1944 will show that any person aggrieved by any decision or order passed by a Central Excise Officer lower in rank than a Collector of Central Excise may appeal to the Collector of Central Excise (Appeals). In the matter before us, the orders were passed by the Assistant Collector on the price lists approving the prices provisionally. While approving the prices provisionally, the learned Assistant Collector had applied his mind and had come to a decision thereafter Rule" 2(ia) of the Central Excise Rules, 1944 defines assessment. The same is reproduced below :- "2(ia) "assessment" means assessment of duty made by the proper officer and includes re-assessment, provisional assessment under Rule 9B, summary assessment under Rule 37-A, best judgment assessment under Rule 173Q and any order of assessment in which the duty assessed is nil." A simple perusal of the above said Rule will clearly show that assessment includes provisional assessment under Rule 9B of the Central Excise Rules, 1944. Rule 9B relates to making of provisional assessment to duty. In the present matter, it is not disputed by both the sides that the asessment made was provisional. The West Regional Bench of the Tribunal had to deal with the issue as to the decision or order in the case of Mahindra & Mahindra Limited v. Collector of Central Excise, Bombay-I reported in 1983 ECR1865. Para No. 12 from the said judgment is reproduced beleow :- "12. Maxwell who is considered to be an authority on interpretation of Statute. On the Interpretation of Statutes, 12th Edition in his book has written "I am quite aware, "that dictionaries are not taken as authoritative exponents of the meanings of the words used in Acts of Parliament, but it is a well-known Rule of courts of law that words should be taken to be used in their ordinary sense, and we are, therefore, sent for instruction to these books". He has also written that the meaning of a Section may be determined, not so much by reference to other individual provisions of the statute, as by the scheme of the Act regarded in general. He has further opined that the previous legislation may be relevant to the interpretation of later statutes in two ways (i) the course which legislation on a particular point has followed often provides an indication as to how the Act at present in force should be interpreted, and (ii) light may be thrown on the meaning of phrase in a statute reference to a specific phrase in an earlier statute dealing with the same subject-matter. Since adjudication has not been defined in the Act, I have to resort to various dictionary meanings : I. Mozley and Whiteley's Law Dictionary, 8th edition by Jonn B. Saunders defines adjudication as "Adjudication, 1. The giving of Judgment, a sentence or decree. Thus we say, it was adjuged for the plaintiff etc.
2. An adujdication of bankruptcy, or that AB was adjudicated a bankrupt following the making of a receiving or if no compositionwas accepted (Bankrupt).
3. By Commissioners of Inland Revenue as to amound of stamp duty chargeable upon a document where in case of doubt application has been made to them under S.12 of the Stamp Act, 1891. A stamp indicating their decision is impressed or affixed. There is an appeal to the High Court.
II. Butterworth's Words and Phrases legally defined volume 2: D- H:1969 Edn. Definition of: Decision - Australia - "I take it that an adjudication or decision of justices is something which is announced but not what is passing in the minds of the justices. It is a decision announced in open court. That is their decision or adjudication.
Adjudication. The passing of a sentence. Judgment or Decree. It is specially used in bankruptcy law. The Court is said to adjudicate or declare a debtor bankrupt when satisfied that there is reason for so doing (Harms).
- is that diligence (execution of the law) by which the real estate of a debtor is adjudged to belong to his creditors in payment of the debts; and the abbreviate must be recorded in the register of adjudication (Bell's dictionary) - Order. The order of a Court in its insolvency jurisdiction declaring a person insolvent.
Adjudication; means giving or pronouncing a decision. The term is often used in insolvency proceedings to denote an order by which a debtor is declared an insolvent. See Section 7 of the Provincial Insolvency Act, 1920 and Section 10 of the Presidency-Town Insolvency Act, 1909.
The Collector may adjudicate proper duty payable on an instrument on application by any party See Secs. 31 & 32. Indian Stamp Act, 1899.
Adjudication : The judgment or decision of a court. The term is principally used in bankruptcy proceedings, the adjudication being the order which declares the debtor to the bankrupt (q.v.) Jowitt's Law Dictionary. 1959 Ed., Vol. I, p. 57.
Adjudication : giving or pronouncing a judgment or decree. In bankruptcy law, adjudication is the act of the Court declaring a person to be bankrupt. In Scots Law it signifies the 'diligence' by which land is attached in security and payment of debt, or by which a feudal title is made up in a person holding an obligation to convey without a procuratory of resignation or precept sasine. There are thus (1) the adjudication for debt; (2) the adjudication in security; and (3) adjudication in implement (Bell's Dict.) A decision of the Hon'ble Supreme Court has given the definition of Decision in the case of Province of Bombay v. Kliushaldas S. Advani; 1950, S.C.R. 621 at p. 642 reported in AIR 1950 S.C. 222 at p. 229 as : The word "decision" in common parlance is more or less a natural expression and it can be used with reference to purely executive acts as well as judicial orders. The mere fact that an executive authority has to decide something does not make the decision judicial. It is the manner in which the decision has to be arrived at which makes the difference and the real test is : Is there any duty to decide judicially? VII. The compact edition of the Oxford English Dictionary, Vol. I. Adjudicating : An adjudging and awarding.
He does decrees also an adjudicating of them upon that Account to eternal glory.
2. A sitting in judgment, or pronouncing sentences, upon a claim. Men whose lives were passed in adjudicating on question of civil rights.
Adjudication : of action : see adjudicate. The Fr. adjudication 16th c.
in Litre, may be the immediate source.
1. The act of adjudicating or adjudging; an awarding or settling by judicial decree.
4. Scotch Law - An attachment of heritable estate as security or in satisfaction of a debt.
In view of the meaning of the word 'adjudication' from various Tribunal, especially, where all the orders are appealable to the dictionaries cited above, and the scheme of the Act, I am of the view that the present Order-in-Appeal is an adjudicating order. The word "adjudication" should be read in a wider and popular sense keeping in view the scheme of the Act. The scheme of the Act prior to insertion of Chapter VI-A by the Finance Act No. 2/80 was that every order or decision passed under the Act was appeal-able to the Collector of Appeals, Board or to the Government of India and subsequently, after the insertion of Chapter VI-A I.am of the view that all such orders or decisions are appealable to the Collector (Appeals) as per provisions of the Present Section 35 read with Sections 35 and 35B(1)(b). The scheme of the Act before the amendment and after the amendment clearly shows that the intention of the legislature was not to snatch the right of appeal which he was enjoying before the insertion of Chapter VI-A of the Finance Act No. 2 of 1980. In an earlier judgment of this Court and I was a party to the same, in the case of Coats (India) Ltd. v.Collector of Central Excise, Bombay-II in appeal No. ED (Bom.) A. No.28 of 1982, this Court had held that the order was not an adjudicating order and was not appealable under Section 35B(1) (a) and I had agreed to that, because, the dictionary meaning was not cited by the learned Counsel for the appellant and while passing the judgment the word "adjudicating" was taken in a very narrow and not in a popular sense.
Now, I change my view and hold that the order passed by the Collector of Central Excise in the instant case was passed as an adjudicating authority and he had fully applied his mind while arriving at a decision. I am of the view that definition of 'adjudication' given by John B. Saunders' Law Dictionary 8th edition is correct, which has been cited above." 7. In view of the above discussion, we hold that the learned Collector of Central Excise (Appeals) was not correct in holding that the appeal was not maintainable. We are of the view that the appeal was maintainable.
8. Now coming to the applicant's prayer for grant of stay, we would like to observe that there is no quantification of demand. Shri V.Sridharan, the learned Advocate during the course of arguments, has also stated that there is no demand flout there is recurring effect.
Sice there is no demand, no order under Section 35F is called for. Shri V. Sridharan, the learned Advocate during the course of arguments, had made a prayer for grant of stay for future clearances. We have considered his argument. The Tribunal has got powers to grant stay in respect of future clearances, but the facts and circumstances of this case do not justify the exercise of inherent powers and accordingly, we are not inclined to accept the prayer of the learned Advocate for the grant of stay for future clearances. However, it is not disputed that there is a recurring effect. In the interest of justice, we order early hearing of the matter. The matter to come up for hearing in the first week of July, 1989. Registry is directed to issue notices of hearing.
9. I have persued the judgment proposed by my learned Brother Shri Harish Chander, Judicial Member. While agreeing to the conclusion reached by him to the effect that the appeal is maintainable, I would set out the following reasons.
10. We are not concerned here with Section 35B (1)(a) of the Act which speaks of a decision or order passed by the Collector of Central Excise as an adjudicating authority. We are concerned here with an order passed by the Collector (Appeals).
11. As is apparent from Section 35B (1)(b) of the Act, "an order passed by the Collector (Appeals) under Section 35A" is appealable to the Tribunal. There can be no doubt whatsoever that the order passed by the Collector (Appeals) is under Section 35A. Accordingly, the appeal is clearly maintainable before the Tribunal.
12. Learned Collector (Appeals) in the impugned order has held that the appeal is infructuous because the Assistant Collector has merely passed an order of provisional assessment and final assessment has not been made. In other words, the learned lower appellate authority holds that no appeal lies against an order of provisional assessment.
Now turning to the provision of Section 35 of the Act, an appeal can be filed before the Collector (Appeals) by "any person aggrieved by any decision or order passed under this Act by a Central Excise Officer...." Rule 173 C(5) read with Rule 9B, provides for provisional approval of the price-list for the purpose of provisional assessment of goods. Prima facie, therefore, there is force in what the learned Advocate for the appellant states that the order passed by the Assistant Collector is one under the Act and an appeal could, therefore, lie against the said order before the Collector (Appeals).
13. However, as proposed by the learned Judicial Member, there is, no case for staying the operation of the order. An early hearing is fixed as spelt out in the order proposed by.