1982 (2) TMI 187 - AT - Customs

Appeal challenging denial of benefit and maintainability dismissed under Central Excise Rules

The appeal challenging the denial of benefit under Rule 56-A of the Central Excise Rules, 1944, and the maintainability of the appeal under Section ... Appeal to the Tribunal against order passed by the Collector in the executive capacity not maintainable Issues:1. Denial of benefit of Rule 56-A under Central Excise Rules, 1944.2. Maintainability of appeal under Section 35-B(1)(a) of the Central Excises & Salt Act, 1944.Issue 1: Denial of benefit of Rule 56-A under Central Excise Rules, 1944:The appeal was filed against the decision of the Collector of Central Excise, Bombay-II denying the appellants the benefit of Rule 56-A in relation to Notification No. 201/79. The Collector's view was that since the appellants were not availing the set-off procedure under a rescinded notification, they were not eligible for condoning the delay in making the application under Notification No. 201/79 as amended by Notification No. 5/81. The appellants argued that the Collector's interpretation was incorrect and relied on a Trade Notice to support their contention. The departmental representative opposed, stating that the appellants did not fulfill the conditions for condonation, including lack of knowledge of the notification. The representative argued that the Collector did not have unlimited discretion to condone the delay, and the appeal should be rejected.Issue 2: Maintainability of appeal under Section 35-B(1)(a) of the Central Excises & Salt Act, 1944:The crucial point in this issue was whether the decisions of the Collector, against which the appeal was filed, were passed in the capacity of an adjudicating authority as required by Section 35-B(1)(a) of the Act. The judgment analyzed the provisions of the Act before and after an amendment, focusing on the definition of 'adjudicating authority.' It was determined that the appeal to the Tribunal would lie only in cases where the Collector issued an order acting as per the provisions of Section 33, relating to adjudication. The judgment emphasized that decisions of Central Excise Officers in their executive capacity should not be subject to judicial review by the Tribunal. Consequently, it was concluded that the present appeal was not maintainable, and it was dismissed without delving into the merits of the case based on the interpretation of the law.This comprehensive analysis of the judgment addresses the denial of benefits under the Central Excise Rules and the maintainability of the appeal under the relevant provisions of the Central Excises & Salt Act, 1944.