TMI Blog1986 (10) TMI 115X X X X Extracts X X X X X X X X Extracts X X X X ..... efund was admissible and that under Notification No. 264/79 set off was not available as duty had been paid by the appellants through banderols. Prior to the date of the said order (that is) on 20-5-1980, the appellants had sent a letter to the Collector of Central Excise, Shillong referring to their claim for set off pending with the Assistant Collector and seeking his intervention in that matter for an early settlement of the said claim. In response to that letter, the Collector sent a reply dated 27-6-1980 (i.e.) after the order of the Assistant Collector, mentioning therein I am directed to say that since you did not avail of set off of duty at the time of removal of the finished matches no relief by way of refund or adjustment in the PLA can be granted to you. However you may approach the Central Board of Excise and Customs New Delhi for a special permission in the matter . This letter had been signed by Deputy Collector on behalf of Collector. 2. Subsequently, the appellants filed an appeal before the Central Board of Excise and Customs referring to the facts mentioned earlier, and stating (ground N in the appeal) that as the Collector had also given his views and. opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lier. That letter was no doubt in response to the letter of the appellants dated 20-5-1980. Under that letter, the appellants had requested the Collector merely to instruct the Assistant Collector to deal expeditiously with their claim for set off. Under his order, dated 4-6-1980, the Assistant Collector rejected the claim for set off. It was open to the Collector in sending a reply to the communication of the appellants dated 20-5-80, to have merely referred to the order of the Assistant Collector dated 4-6-1980 and mentioned that as the Assistant Collector had disposed of the matter the appellants may refer to that order, nothing more remaining to be done by the Collector. But, unfortunately, the Collector had not done so but had sent his letter dated 27-6-1980 as if he himself was thereunder denying the relief of set off claimed by the appellants, without making any reference to the order of the Assistant Collector. Shri Lakshmikumaran contends that faced with this letter the appellants were placed in a dilemma and had to decide whether they should go in appeal to the Appellate Collector against the order of the Assistant Collector or to treat the letter of the Collector as a de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iginal decision or order. Therefore unlike the provisions of the Indian Income Tax Act, 1922 which restricted the right of appeal against the orders passed under particular sections only, the Central Excises and Salt Act (as it then stood) provided for an appeal against any decision or order by a Central Excise Officer. We may in this connection note the undermentioned passage in the Judgment of the Allahabad High Court (occurring at page 191) Shri Jagdishn Swarup contended that the interpretation we placed would leave an assessee without remedy against a wrong order by an Appellate Assistant Commissioner that the appeal is incompetent or does not lie. If this is the result, it is not because of the interpretation being wrong but because that was the policy of the legislature. The legislature was not bound to provide a remedy against that wrong order. If it intended to have remedy in such a case it should have laid down in Section 33 that an appeal would lie to the Tribunal from any order passed by the Appellate Assistant Commissioner . As earlier mentioned, the provisions in the Central Excises and Salt Act at the relevant time provided for an appeal against any order or decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer. 8. Shri Doiphode then referred to the decision of this Tribunal in Brooke Bond India Ltd. v. Collector of Central Excise (1983 E.L.T. 1169). He pointed out that the Tribunal had held therein that a letter by the Deputy Collector cannot be considered as an adjudication order. From the decision, we are unable to discover what were the contents of the said letter of the Deputy Collector dated 30-6-1975 and why the Tribunal did not consider the same to be a decision or order. On the other hand, we have seen that the letter of the Collector in the present instance dated 27-6-1980 amounted to a decision or order. In the other case, relied on by Shri Doiphode, New Horizon Sugar Mills Private Limited v. Assistant Collector of Central Excise (1979 ELT-3 75), a contention was raised before the (Madras High Court that when the Assistant Collector directed the assessee by letter dated 24-10-1975 to revise its claim for rebate whether that would amount to a decision or order against which an appeal had to be preferred and therefore no proceeding for issue of a writ would lie. It was pointed out that even in the counter-affidavit (of the department), it was only mentioned that the commu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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