Decided on January 30,1986



S.Kalyanam, - (1.)THIS appeal is filed by the Collector of Central Excise, Madras and directed against the order of the Collector of Central Excise (Appeals), Madras, referred to supra, confirming the order of the Assistant Collector of Central Excise, Madras VI Division, dated 20-11-1984 in No. V/34A/18/1/84-T3 granting a refund of Rs. 13,962.90 to the respondents herein. The respondents herein filed a refund claim for a sum of Rs. 13,962.90 being the excise duty paid on goods meant for export which were sent under AR4A No. 24/83-84 dated 17-2-1984. THIS amount represents the duty that was debited by the respondents in their PLA. The respondents applied for permission to bring back the goods that was sought to be exported for purposes of repacking and re-exporting the same to Singapore, since the respondents' consignee wanted the goods to be sent directly to Singapore. It is in these circumstances the respondents took out an application seeking permission of the authorities in terms of Rule 173M of the Central Excise Rules, 1944 and the same was granted. The consignments after repacking were subsequently exported to Singapore under bond and the respondents claimed refund of the amount already paid at the time of the first clearance within time. The original authority granted the refund as against which pursuant to the direction issued by the Collector of Central Excise, Madras, in terms of Section 35E(4) of the Central Excises and Salt Act, 1944, an appeal was preferred before the Collector (Appeals) by the Department, which was also dismissed and against that order of dismissal of the Collector (Appeals), the Department has come by way of appeal before the Tribunal.
(2.)The learned SDR submitted that the permission accorded by the Assistant Collector in terms of Rule 173M enabling the respondents to bring back the goods for purposes of repacking into smaller containers and re-exporting the same directly to Singapore is purely administrative in nature and not an exercise of a quasi-judicial function. It was further urged notwithstanding the fact that such permission was granted by the Assistant Collector the respondents in law would not get a right to claim of refund of the duty relating to the consignments in question. He further urged that the impugned order of the original authority viz., the Assistant Collector of Central Excise, Madras, according sanction of the refund and confirmation of the same by Collector (Appeals) is legally not tenable and therefore, the impugned order should be set aside.
The short question that arises for my consideration in this appeal is whether the refund granted in favour of the respondents by the Assistant Collector of Central Excise, Madras VI Division, dated 20-11-1984 and confirmed by the Collector (Appeals) by his order dated 7-6-1985 is legally sustainable or not. Admittedly, in the instant case the excisable goods cleared for export were brought back to the same factory for purposes of repacking in small containers and re-exporting them to Singapore pursuant to the permission granted to the respondents by the authorities in terms of Rule 173M. While such a permission has been accorded it is not now open to the Department to question the correctness of the same when the Department did not choose to file any appeal against the grant of such a permission. I do not agree with the submission of the learned SDR that the purported exercise of power and jurisdiction by a competent authority under the Act in terms of Rule 173M is administrative in nature and procedural in character. In my opinion, such exercise of power is clearly quasi-judicial in character involving civil consequences in favour of the parties concerned. As the Supreme Court had occasion to point out the dividing line between an administrative power and a quasi-judicial power is quite thin and is being gradually obliterated. For determining whether a power is an administrative power on a quasi-judicial power, one has to look to the nature of the power conferred, the person or persons on whom it is conferred, the framework of the law conferring that power, the consequences ensuing from the exercise of that power and the manner in which the power is expected to be exercised. The concept of rule of law would lose its vitality if the instrumentalities of the State are not charged with the duty of discharging their functions in a fair and just manner. The requirement of acting judicially in essence is nothing but a requirement to act justly and fairly. In recent years, the concept of quasi-judicial power has been undergoing a radical change and what was considered as an administrative power some years back is now being considered as a quasi-judicial power. Often times, it is difficult, to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. The permission having been accorded admittedly by a competent authority, grant of refund flows as a matter of sheer consequence subject, of course, to the respondents complying with the various stipulations incorporated in Rule 173M. It is not disputed in the instant case that the respondents complied with all the requirements and conditions stipulated by Rule 173M, and in such a situation the plea of the learned SDR that Rule 173M does not envisages repacking is not legally tenable. Under Rule 173M, the Collector may allow manufactured excisable goods cleared for export under claim for rebate or in bond but not exported for any reasons to be returned to the same factory or any other factory for being remade, refined, reconditioned, or subjected to other similar processes in the factory subject to various conditions enumerated under the proviso. Evidently, remaking or reconditioning would certainly involve unpacking and repacking and merely because the word 'repacking' is not used in the rule it cannot be contended that goods cannot be permitted to be brought back to the factory under Rule 173M with the permission of the authorities for purposes of repacking. Such an interpretation of Rule 173M, as contended by the learned SDR, viz. that repacking is not envisaged thereunder would defeat the very purpose for which Rule 173M has been provided for. I therefore, do not find any merit in the appeal and accordingly the impugned orders appealed against are confirmed as correct in law and the appeal is dismissed.

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