1993 (6) TMI 169

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....ow: Appeal No. E-4377/93 is against the order F. No. V (C.E.) Trb-252/92/iii dated 4-2-1993, while appeal No. E-4378/93 is against the order F. No. V (C.L.) Trb-253/92/iii dated 5-2-1993. 2. Since the orders impugned were passed by the Collector in exercise of the powers under Section 35E of the Central Excise Act, the Bench directed the ld. Advocate to argue at full length on the preliminary objection with regard to the maintainability of the appeals before the Tribunal and the availability of jurisdiction for the Tribunal to entertain the appeal and the connected stay application. 3. The main thrust of the arguments of the ld. Advocate are as below : 3(1) The order passed by the Collector in exercise of the powers conferred under Section 35E of the C.E. Act is also an adjudication order, involving application of mind, giving out reasons for framing the points for determination to be raised in the appeal. He referred to Section 35E(2) and Section 35 to elaborate this contention. Under Section 35 of the C.E. Act, any person aggrieved by the order or decision by a Central Excise officer lower in rank than a Collector of Central Excise, may file an appeal to the Collector....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....f operation of these two orders. 4. Shri Mondal, the ld. SDR, rebutted the contentions as below : (i) These two are frivolous appeals, deserving to be rejected at this stage itself. (ii) He took us through Section 35E(2) to point out that it is to enable the Collector to look into the legality and propriety of the orders passed by his subordinate officers for satisfying himself on these aspects and if he is not satisfied, he may pass an order for the limited purpose of directing his subordinate officer to file an appeal before the Collector (Appeals). It is a direction to his subordinate officer based on his own examination and satisfaction. This is the only provision under which the Department can file appeal before Collector (Appeals) in respect of orders passed by an officer subordinate to the rank of the Collector. (iii) The contention of the ld. Advocate that the Department can file appeal under Section 35 is not at all supported by the Tribunal. In this context, he referred to the decision of the Bench in the case of Assistant Director (Revenue Intelligence) v. Pooja Exports reported in 1991 (36) ECR 414 = 1991 (52) E.L.T. 625 (Tri.), which, in turn, relies on an ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....Tribunal does not have jurisdiction to entertain such appeals and appeals against administrative directions are not maintainable in law. (vii) The Apex Court's decision cited by the ld. Counsel is distinguishable and cannot be applied in this case, where the statutory provisions under the Central Excise Act are clear. (viii) In the result, he would plead for rejection of the appeals, since they are not maintainable under Section 35B of the Central Excise Act. 5. After hearing both the sides, we find that the following issues are to be decided for considering whether the appeals are maintainable before the Tribunal: (i) Whether the order, directing the Assistant Collector to file an appeal before the Collector (Appeals), passed by the Collector of Central Excise in exercise of powers conferred on him under Section 35E(2) of the said Act is an order passed by the Collector of Central Excise as an adjudicating authority? This is the main issue, on which other following issues revolve around. (ii) Whether such an order is an administrative order or a quasi-judicial order? (iii) Whether the Collector of Central Excise, before passing an order under Section 35E(2), shou....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....s, against which the decree or judgment or award is ordered. For arriving at this view on 'adjudication', apart from the aforesaid meanings given in the dictionary and law lexicon, we also draw support from the case law cited by the ld. Advocate reported in AIR 1965 SC 507. The relevant extracts bringing out the essence of distinction between a judicial order (adjudication order) and the administrative order; as contained in the aforesaid judgment are reproduced below : "An administrative order would be one, which is distinguished from an order, which decides the rights of parties or confers or refuses to confer rights to property, which are the subject of adjudication by the court. One of the tests would be whether a matter, which involves the exercise of discretion is left for the discretion of the authority, particularly if that authority were a court and if the discretion has to be exercised on objective, as distinguished from a purely subjective consideration, it would be a judicial decision." (vide para 13 of the judgment). 6(4) In the context of the criteria laid down as above by the Apex Court and also having regard to the meaning assigned to the term 'adjudication' i....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....tayed by the Collector (Appeals), only after considering the objections from the other side. Hence judged by the line of demarcation laid down by the Apex Court, we are unable to agree with the ld. Counsel that the order passed by the Collector under Section 35E of the Act is an order passed by him as an adjudicating authority, since he is not deciding on any issue affecting the rights of the other side, nor is he giving judgment or decree or levy duty or impose penalty by the issue of an order under Section 35E of the Act. It is only an order of direction to the subordinate officer, where he is not personally satisfied with the legality or propriety of the order. Hence, it is purely a direction from the head of the Department, administrating revenue collections, to the subordinate officer for filing an appeal and nothing beyond that. It is neither a judicial nor a quasi-judicial order; which can be appealed against before the Tribunal under Section 35B of the Act. 6(6) We could arrive at this conclusion on a straight reading of the Apex Court judgment bringing out the distinction between an administrative order and a judicial order and in the context of the meanings of the term....