Bhagabati Prasad Banerjee, J. - (1.) This writ application is directed against an order dated 12th February, 1985 passed by the Collector (Appeals) wherein it was held that the Additional Collector of Central Excise who passed the original order requiring the petitioner company to pay Central Excise duty amounting to Rs. 62,874/- under the Central Excises and Salt Act, 1944 read with Rule 9(2) of the Central Excise Rules, 1944 and the penalty of Rs. 5.000/- for contravention of the Central Excise Rules, is not an authority lower in rank to the Collector of Central Excise and as such it was held that the appeal should be decided by the Central Excise and Gold (Control) Appellate Tribunal and that consequently, ft was held that the Collector of Central Excise (Appeals), Calcutta had no jurisdiction to entertain and/or dispose of the appeal under the law. The question of law that is involved In this case is whether the Additional Collector of Central Excise is an authority lower in rank to the Collector of Central Excise or not and that If it is held that the Additional Collector of Central Excise is not lower in rank to the Collector of Central Excise, in that event, the appeal against the order passed by the Additional Collector shall lie to the Appellate Tribunal, namely, the Special Bench of CEGAT, New Delhi and on the contrary, if it is held that the Additional Collector of Central Excise is lower in rank to the Collector of Central Excise, In that event, the appeal which was filed by the petitioner before the Collector of Central Excise (Appeals) Calcutta would be held to be maintainable and the order dated 12th February, 1985 passed by the Customs Excise and Gold (Control) Appellate Tribunal, Calcutta Bench would be illegal. The fact in short relevant for the purpose of determination of this question Is as follows:
(2.) It was alleged that the petitioner company availed irregular exemption under Notification No. 71/78, dated 1-3-1978 as amended by Notification No. 91/78, dated 31-3' 1978. Notification No. 71 /78, dated 1 -3-1978 exempted the gas falling under Tariff Item No. 14H upto a value of Rs. 5 lakhs in respect of clearance beginning from 1 -4-1978, provided that the total value of clearances during the proceeding 11 months ending on 28-2-1978 did not exceed Rs. 13.75 lakhs. As it was found that though the value of the clearance effected from 1-4-1977 to 28-2-1978 in respect of oxygen and dissolved acetylene gas exceeded the aforesaid limit of Rs. 13.75 lakhs, the petitioner was granted exemption computing the value of clearance at Rs. 13.55 lakhs, as the petitioner did not declare the production and clearance value of Acetylene Gas during 1 -4-1977 to 17-6-1977. Thereby the petitioner enjoyed exemption for clearance effected by them till 29-6-1978. In the Show Cause Notice it was alleged that the petitioner company had contravened the provision of Rules 9(1), 173G and 173Q of the Central Excise Rules, 1944 inasmuch as the petitioner company availed irregular exemption under Notification No. 71/78, dated 1-3-1978 as amended by Notification No. 91/78, dated 31 -3-1978 in respect of Oxygen and dissolved Acetylene Gas falling under Tariff Item No. 14(H).
(3.) By the said Show Cause issued by the Additional Collector of Central Excise, Patna on 27th of March, 1985 the petitioner company was required to pay the Central Excise duty amounting to Rs. 62,874/- under the Central Excises and Salt Act, 1944 read with Rule 9(2) of the Central Excise Rules, 1944 and also a penalty of Rs. 5.000/- for contravention of Central Excise duty. In the said proceeding, the petitioner company was found liable to pay a sum of Rs. 62.S74/- and a penalty of Rs. 5.000/-. Thereafter, against the said order dated 27th of March, 1984 passed by the Additional Collector of Central Excise, Patna, the petitioner preferred an appeal before the Collector of Central Excise (Appeals) on 9-10-1984. Thereafter, the said appeal was not entertained by the Collector of Central Excise (Appeals), Calcutta as he had no jurisdiction to entertain the said appeal and it was held by him that against the order of the Additional Collector the appeal would lie before the Appellate Tribunal, New Delhi. At that stage, the petitioner company moved a writ application before this court whereupon Amtiabha Dutta.J. passed an order dated 18-9-1984 whereby it was ordered that "upon the petitioner's withdrawing before the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi and furnishing proof of such withdrawal, it will be permitted by the Collector of Central Excise (Appeals) to refile the appeal before him within three weeks from this date and in that event the Collector of Central Excise (Appeals) shall decide the question of jurisdiction to hear the appeal after giving the petitioner an opportunity of being heard and pass a reasoned order on that question..." Pursuant to the said direction passed by this Court, the Collector of Central Excise (Appeals) Calcutta heard the matter and held that the said appeal was not maintainable before the said authority, inasmuch as the post of the Additional Collector of Central Excise was equivalent to the post of Collector of Central Excise and as such the appeal would lie under the law before the Appellate Tribunal and the Collector of Central Excise (Appeals) Calcutta also passed an order restraining the Central Excise Officer, Patna not to enforce the demand of extra duty as well as penalty until CEGAT, Calcutta Bench passed an Interim order or final order in the appeal to be filed by the petitioner. Against this order the petitioner filed another application before this Court whereupon I disposed of the writ application on 15-1-1985 to refile the appeal before CEGAT, Calcutta which was returned by the Collector of Central Excise (Appeals) Calcutta by the order dated 27-10-1984 within a period of three weeks from that date and the said authority will decide the issue about the maintainability of the appeal before the Tribunal in view of the two decisions cited by the petitioner which were reported in 1983 ELT 1964 and 1983 ELT 645 and other decisions that might be placed before the Tribunal within a month from the date of presentation of appeal. The impugned order was passed pursuant to the direction given by me on 15th of January. 1985 by which the Customs Excise and Gold (Control) Appellate Tribunal, Regional Bench by the order dated 12th February, 1985 considered all the case laws for the determination of the question whether the post of an Additional Collector is lower in rank to the post of Collector of Central Excise or not and held that the post of Additional Collector of Central Excise was not lower in rank to the post of Collector of Central Excise and as such the appeal would lie to the 'Appellate Tribunal in view of the provisions of Section 35(B) of the Central Excises and Salt Act. Under Section 35 of the said Act, appeal lies to the Collector of Central Excise if the order is passed by a Central Excise Officer who is lower in rank than the Collector of Central Excise whereas appeal to the Appellate Tribunal would lie if the decision or order is passed by the Collector of Central Excise as an adjudicating authority.;