1986 (10) TMI 115 - AT - Central Excise

Tribunal rules Collector's letter can be appealed under Central Excises and Salt Act

The Tribunal overruled the preliminary objection, determining that the Collector's letter constituted a decision or order subject to appeal under the ... Appeal against the communication/letter of Department refusing to grant relief maintainable Issues Involved:1. Rejection of set off claim by the Assistant Collector.2. Appeal to the Central Board of Excise and Customs.3. Preliminary objection regarding the appealability of the Collector's letter.4. Nature of the Collector's letter as an administrative or judicial order.5. Applicability of legal precedents to the case.Detailed Analysis:1. Rejection of Set Off Claim by the Assistant Collector:The appellants, M/s Wimco Ltd., applied for a set off of excise duty paid on inputs used in manufacturing matches, relying on Notification No. 178/77-CE dated 18-6-1977. The Assistant Collector of Central Excise, Dhubri, rejected this claim on 4-6-1980, citing Notification No. 201/79-CE and Notification No. 264/79-CE. The Assistant Collector noted that the goods had already been cleared without availing of the set off and that no cash refund was admissible under Notification No. 201/79, and set off was not available as duty had been paid through banderols under Notification No. 264/79.2. Appeal to the Central Board of Excise and Customs:The appellants filed an appeal before the Central Board of Excise and Customs, challenging both the Assistant Collector's order and a subsequent letter from the Collector dated 27-6-1980, which reiterated the rejection of the set off claim. The Central Board rejected the appeal on 31-10-1980, stating that the appellants should have appealed against the Assistant Collector's order following the proper procedure, rather than referring the matter to the Collector.3. Preliminary Objection Regarding the Appealability of the Collector's Letter:During the appeal, a preliminary objection was raised by the respondent, arguing that the appellants could not directly appeal to the Central Board against the Assistant Collector's order and that the Collector's letter was not an appealable order but merely an administrative communication. The appellants contended that the Collector's letter effectively denied them relief and should be considered an order subject to appeal.4. Nature of the Collector's Letter as an Administrative or Judicial Order:The Tribunal analyzed whether the Collector's letter dated 27-6-1980 constituted an administrative or judicial order. The letter responded to the appellants' request for intervention and reiterated the denial of the set off claim without referencing the Assistant Collector's prior order. The Tribunal noted that the letter appeared to deny relief and provided reasons for the decision, thereby meeting the criteria of a judicial order as per the Supreme Court's decision in Jaswant Sugar Mills v. Laxmi Chand.5. Applicability of Legal Precedents to the Case:The respondent cited several legal precedents to support their preliminary objection. The Tribunal examined these cases, including Gangadhar Baijnath v. Commissioner of Income-tax and Brooke Bond India Ltd. v. Collector of Central Excise, and found them inapplicable to the present case. The Tribunal concluded that the Collector's letter amounted to a decision or order under Section 35 of the Central Excises and Salt Act, which provided for appeals against any decision or order by a Central Excise Officer.Conclusion:The Tribunal overruled the preliminary objection, holding that the Collector's letter dated 27-6-1980 constituted a decision or order subject to appeal under the Central Excises and Salt Act. The appeal was directed to be posted for hearing on merits on 1-12-1986.