COLLECTOR OF C EX Vs. JAWANMAL GISHULAL

JUDGEMENT

(1.) THIS Reference Application is filed by the Collector of Central Excise, Madras and is directed against the order of the Tribunal dated 18-11-1987 in Order No. 799/87. The following questions have been set out in the Reference Application:

(2.) Shri K.M. Vadivelu, the learned Departmental representative submitted that there are some repetition in setting out the questions of law in the Reference Application and the primary issue arising for determination is Question No. (6) set out above and submitted that the same may be taken up for consideration. The learned D.R. making submissions on Question No. 6 set out above submitted that Section 80A(3) empowers the Collector (Appeals) to pass such order as he thinks fit after making such further enquiries as may be necessary, confirming, modifying or annulling the decision or order appealed against, or may refer the case back to the adjudicating authority with such directions as he may think fit for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary. The learned D.R. submitted that the lower appellate authority finding that the order of the original authority exonerating the respondent herein on a charge of contravention under Section 27(1) of the Gold (Control) Act, 1968 ('the Act' for short) is not correct, exercised his power in terms of Section 80A Clause (3) of the Act and remanded the same issue for reconsideration. The learned D.R. urged that such power of remand is well within the competence of the Collector of Central Excise (Appeals) and the finding of the Tribunal in regard to the same is not correct and a question of law would arise in this regard meriting reference.

(3.) I have carefully considered the submissions made by the learned D.R. In the present case the respondent was initially proceeded against on a charge of contravention under Section 8(1), 6(2) and 27(1) of the Act. So far as the charge under Section 8(1) of the Act is concerned, there is no controversy; even the respondent pleaded guilty. The original adjudicating authority namely, the Additional Collector of Central Excise, Madras, by his order dated 17-4-1983 exonerated the respondent herein of the charge of contravention under Section 27(1) of the Act and found him guilty in respect, of contravention under Section 6(2). The respondent questioned the correctness or propriety of the correctness of the order of the original authority in regard to contravention under Section 6(2) of the Act and preferred an appeal before the lower appellate authority who after exonerating the applicant of the charge u/s 6(2) of the Act remanded the matter to the original authority. This order of remand was challenged in appeal before the Tribunal and the Tribunal in the impugned order held that the only issue that was before the lower appellate authority was with reference to the correctness or propriety of the order of the original authority finding the respondent guilty of contravention under Section 6(2) of the Act. The respondent did not prefer any appeal at all and could not prefer any appeal when he was exonerated of the charge of contravention under Sec. 27(1) of the Act. In such a situation the Tribunal held under the impugned order that the lower appellate authority has no competence or jurisdiction to resurrect as it were a dead issue or a non-issue in regard to the correctness of the order of the original authority exonerating the respondent in regard to contravention under Section 27(1) and take upon itself <i>suo motu</i> for considering the propriety of such finding or order of the original authority not appealed against (emphasis supplied) and remand the issue for fresh adjudication. The Tribunal has observed as under: