1989 (9) TMI 213 - AT - Central Excise

Summary

Issues:
Classification of pain balm under Central Excise Tariff, legality of orders passed by Collector and Central Board of Excise & Customs, maintainability of appeal before the Appellate Tribunal.

Classification of Pain Balm:
The case involved the classification of a pain balm manufactured by a company under the Central Excise Tariff. Initially classified as a patent and proprietary medicine falling under T.I. 14E, the company later classified it as an Ayurvedic Medicine under T.I. 68. The main ingredients of the balm were examined, and the Assistant Collector classified it under T.I. 68, granting total exemption under Notification 55/75. However, the Collector of Central Excise, Madras called for a review, leading to a show cause notice for reclassification under T.I. 14E. After the company's reply, the Collector dropped the proceedings, which was further reviewed by the Central Board of Excise & Customs, leading to an appeal before the Appellate Tribunal.

Legality of Orders:
The legality of the orders passed by the Collector and the Central Board of Excise & Customs was questioned. The Collector's order-in-review was reviewed by the Board under Section 35E(1) of the Central Excises and Salt Act, 1944, directing the Collector to apply to the Appellate Tribunal. The argument centered on whether the Collector's order was passed as an adjudicating or reviewing authority. The Tribunal clarified that the Board could review an order only if passed as an adjudicating authority, not a reviewing authority. Referring to Section 35B(1) of the Act, it was established that an adjudicating authority is the original authority, not a reviewing authority. Citing a previous Tribunal decision, it was emphasized that the Board's jurisdiction under Section 35E(1) is limited to orders passed by the Collector as an adjudicating authority.

Maintainability of Appeal:
The core issue before the Appellate Tribunal was the maintainability of the appeal filed by the Collector. The Collector's order was passed under Section 35A as a reviewing authority, not an adjudicating authority. The Tribunal dismissed the appeal, stating that the Board could not exercise review power under Section 35E(1) for orders passed by the Collector as a reviewing authority. The Tribunal's decision was supported by a previous case where it was clarified that the Board's review jurisdiction is limited to orders passed by the Collector as an adjudicating authority, not a revising authority.

In conclusion, the Appellate Tribunal dismissed the appeal, emphasizing the distinction between an adjudicating authority and a reviewing authority in the context of the Central Excise Act. The Tribunal held that the appeal was not maintainable as the Collector's order was passed as a reviewing authority, not as an adjudicating authority, and the Board could not review such orders under Section 35E(1) of the Act.