Universal Asbestos Mfg. Co. (P) Vs. Collector of Central Excise - Court Judgment

Excerpt:
2. on account of the view that we are going to take in this appeal, we do not propose to enter into the merits of the case.3. it appears that originally by order in original no.208/(22f)80-collector-20/81 dated 2-3-1981, the learned collector was pleased to impose excise duty and also penalty on the appellant. the appellant went up in an appeal against this order before the central board of excise & customs. by order no. 481p of 1981 dated 21-8-1981, the learned board set aside the above mentioned order of the collector and remanded the case back to the collector for de novo adjudication after affording full opportunity to the appellants to put up their defence and after observing the principles of natural justice.4. thereafter the learned collector by his order in original no. 5 de novo (22f)80/collr. 64/82 dated 15-7-1982 held that there was no justification to change the order already passed by the collector. the concluding portion of his order runs as follows: i, therefore, confirm the earlier order in original no. 208/(22f)80-collr-20/ 81 dated 2-3-1981.5. this shows that even on de novo examination, the learned collector did not proceed to award any fine or penalty on the appellants. he only confirmed the earlier order passed by him which had already been set aside by the learned board.6. it may be mentioned here that setting aside of the order of the collector by the learned board, in law, will amount to effacing the entire order. in other words, after this order was set aside, it ceased to exist in the eyes of law. since the order itself ceased to exist in the eyes of law, it could not have been confirmed by the learned collector by his order dated 15-7-1982, as mentioned above after de novo examination. an order, which does not exist in the eyes of law, cannot be confirmed. though the learned collector, in the course of de novo examination, has taken pains to show that sufficient opportunity, according to him, was given to the appellant as directed by the learned board, it is apparent that his order suffers from a legal defect which cannot be cured.7. in view of what has been stated above, this order of the learned collector dated 15-7-1982 is set aside and the case is remanded back for de novo adjudication in accordance with law to the learned collector of central excise having jurisdiction, after giving the appellant an opportunity of being heard.

Judgment:
2. On account of the view that we are going to take in this appeal, we do not propose to enter into the merits of the case.

3. It appears that originally by order in original No.208/(22F)80-Collector-20/81 dated 2-3-1981, the learned Collector was pleased to impose excise duty and also penalty on the appellant. The appellant went up in an appeal against this order before the Central Board of Excise & Customs. By order no. 481P of 1981 dated 21-8-1981, the learned Board set aside the above mentioned order of the Collector and remanded the case back to the Collector for de novo adjudication after affording full opportunity to the appellants to put up their defence and after observing the principles of natural justice.

4. Thereafter the learned Collector by his order in original No. 5 de novo (22F)80/Collr. 64/82 dated 15-7-1982 held that there was no justification to change the order already passed by the Collector. The concluding portion of his order runs as follows: I, therefore, confirm the earlier order in original No. 208/(22F)80-Collr-20/ 81 dated 2-3-1981.

5. This shows that even on de novo examination, the learned Collector did not proceed to award any fine or penalty on the appellants. He only confirmed the earlier order passed by him which had already been set aside by the learned Board.

6. It may be mentioned here that setting aside of the order of the Collector by the learned Board, in law, will amount to effacing the entire order. In other words, after this order was set aside, it ceased to exist in the eyes of law. Since the order itself ceased to exist in the eyes of law, it could not have been confirmed by the learned Collector by his order dated 15-7-1982, as mentioned above after de novo examination. An order, which does not exist in the eyes of law, cannot be confirmed. Though the learned Collector, in the course of de novo examination, has taken pains to show that sufficient opportunity, according to him, was given to the appellant as directed by the learned Board, it is apparent that his order suffers from a legal defect which cannot be cured.

7. In view of what has been stated above, this order of the learned Collector dated 15-7-1982 is set aside and the case is remanded back for de novo adjudication in accordance with law to the learned Collector of Central Excise having jurisdiction, after giving the appellant an opportunity of being heard.