TMI Blog1983 (8) TMI 172X X X X Extracts X X X X X X X X Extracts X X X X ..... . Okay Transport Corporation, that the lorry was hijacked near Tumkur on the national highway leading to Bombay. M/s. Okay Transport Corporation had lodged a complaint regarding the hijacking with the nearest Kora Police Station in the jurisdiction of Circle Inspector of Police, Tumkur vide case No. 61/80 under Section 395 of the Indian Penal Code. The hijacked lorry was ultimately traced near Hassan and it was found that a part of the consignment was stolen. The remaining consignments were received and the appellants had sent a report to the suppliers as to the shortage of goods resulted due to hijacking. The goods covered by AR 3 A and GP2 were duly insured for the value of the goods exclusive of Central Excise duty leviable thereon. The goods were sent by MICO under Bond and no duty was paid. The jurisdictional Superintendent of Central Excise raised a demand of Rs. 10,429.92 P. being duty payable on the goods short received. In terms of provisions of Rule 96 of the Central Excise Rules, the appellants had paid the amount under protest. The appellants had filed an application No. ITD/C : Ex.(C9)/ 80-81, dated the 19th July, 1982 before the Collector of Central Excise, Bombay-1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalty. If he unreasonable or irrationally or capriciously fails to satisfy himself, notwithstanding reasonable explanations rendered by the carrier, the penalty under Section 116 ibid cannot be validly imposed. He also relied on the Government of India decision in the case of Dempo Steamship Ltd. - [1980 (6) E.L.T. 373]. He has further submitted that the words lost or destroyed used in Rule 196 of the Central Excise Rules, 1944 should be interpreted liberally in comprehensive sense and not in a narrow sense. He has relied on the Delhi High Court Judgment in the case of Sialkot Industrial Corporation, Meerut v. Union of India and Another reported in 1979 (4) E.L.T. (J 329). In the said case the Honourable High Court has decided that the expression lost of destroyed , in Section 23 of the Customs Act, 1962 is used in a generic and comprehensive sense and not in a narrow sense. It postulates loss or destruction caused by whatsoever reason, whether theft, accident including pilferage. He has further submitted that in the said case the Supreme Court Judgment has been referred to in the case of East and West Steamship Co. v. S.L. Ramalingam Chettiar reported in AIR 1960 S.C. 1068. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor of Central Excise, Bombay-1, and was communicated to the Appellants on his behalf by the Assistant Collector of Central excise. He has submitted before us that this Order-in-Appeal was passed by the Collector of Central Excise in his capacity as an Executive Authority, and not as an adjudicating authority and hence, the said order is not appealable under Section 35B(1)(a) of the Central Excises and Salt Act, 1944. He has submitted that an order or decision passed by the Collector of Central Excise as an adjudicating authority is appealable to the Appellate Tribunal. He has further submitted that, if at all, the appellant is aggrieved from this order, he should approach the Central Board of Revenue for seeking executive instructions to the Collector. Shri N.K. Pattekar has also drawn our attention to the judgment of this Court passed in E.D. (Bom.) A. No. 28 of 1982, dated the 24th day of February, 1982 in the case of M/s. Coats of India Ltd. v. Collector of Central Excise, Bombay-11 - [1987 (31) E.L.T. 583]. He has submitted that this Court had held that where an order is of an administrative nature, it is not appealable under Section 35B(1)(a) of the Central Excises and Salt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1982, i.e. the day Customs, Excise and Gold (Control) Appellate Tribunal came into existence. Before insertion of Chapter VIA, the dealing Sections as to appeal were Sections 35, 35A and 36(1)(a) of the Central Excises and Salt Act, 1944. The relevant portions of deleted sections dealing with the appeals are reproduced as under : 35. Appeals (1) Any person deeming himself aggrieved by any decision or order passed by a Central Excise Officer under this Act or Rules made thereunder (not being an order passed under Section 35A) may, within three months from the date of such decision or order, appeal therefrom to the Central Board of Excise and Customs constituted under the Central Board of Revenue Act, 1963, or in such cases as the Central Government directs, to any Central Excise Officer not inferior in rank to an Assistant Collector of Central Excise and empowered in that behalf by the Central Government. Such authority or officer may thereupon make such further inquiry and pass such order as he thinks fit, confirming, altering or annulling the decision or order appealed against : Provided that no such order in appeal shall have the effect of subjecting any person to any great ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , in its discretion refuse to admit an appeal in respect of an order referred to in Clause (b) or Clause (c) or Clause (d) where - (i) In any disputed case other than a case where the determination of any question having a relation to the rate of duty of excise or to the value of goods for purposes of assessment is in issue or is one of the points in issue, the difference in duty involved or the duty involved; or (ii) the amount of fine or penalty determined by such order, does not exceed ten thousand rupees. 8. A simple reading of present Section 35 shows that any person aggrieved by any decision or order passed under this Act by the Central Excise officer lower than the Collector of Central Excise may appeal to the Collector of Central Excise (Appeals) and as per provisions of Section 35B every order passed by the Collector (Appeals) under Section 35A is appealable to the Tribunal. Thus every order or decision passed by the Central Excise Officer lower in rank than the Collector of Central Excise is appealable to the Collector (Appeals) and is further appealable to the Tribunal. Under the provisions of Section 35B(1)(a) any person aggrieved by a decision or order passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which that word is understood in common parlance. However, in selecting one out of the various meanings of the word, regard must always be had to the context. It was also held by the Honourable Rajasthan High Court in the case of Shitabkhan v. Bar Council of India, A.I.R. 1969 (Raj.) 136 at page 141. The Honourable Punjab High Court had held that, in the case of Hazara Singh v. State of Punjab, A.I.R. 1961 Punjab 34 at page 39 (Full Bench), where a word used in an Act, is capable of various shades of meaning, the particular meaning to be attached must be arrived at by reference to the Scheme of the Act or of the section in particular taken as a whole. 12. Maxwell who is considered to be an authority on interpretation of Statutes. On the Interpretation of Statutes, 12th Edition in his book has written I am quite aware, that dictionaries are not to be taken as authoritative exponents of the meanings of the words used in Acts of Parliament, but it is a well-known rule of Courts of law that words should be taken to be used in their ordinary sense, and we are therefore sent for instruction to these books". He has also written that the meaning of a section may be determined, not so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry and decide judicially . Adjudication. - means giving or pronouncing a decision. The term is often used in insolvency proceedings to denote an order by which a debtor is declared an insolvent. See Section 7 of the Provincial Insolvency Act, 1920 and Section 10 of the Presidency Town Insolvency Act, 1909. The Collector may adjudicate proper duty payable on an instrument on application by any party. See Sections 31 and 32 Indian Stamp Act, 1899 . V. Law Lexicon and Legal Maxims, 2nd edition by Venkataramaiya. Adjudication. - The judgment or decision of a Court. The term is principally used in bankruptcy proceedings, the adjudication being the order which declares the debtor to be bankrupt (q.v.) Jowitt s Law Dictionary, 1959 Ed.. Vol. I, p. 57. VI. T.P. Mukherjee s Law Lexicon, Vol. I, 1982. Adjudication. - giving or pronouncing a judgment or decree. In bankruptcy law, adjudication is the act of the Court declaring a person to be bankrupt. In Scots Law it signifies the diligence by which land is attached in security and payment of debt, or by which a feudal title is made up in a person holding an obligation to convey without a procuratory of resignation or precept ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was not to snatch the right of appeal which he was enjoying before the insertion of Chapter VIA of the Finance Act No. 2 of 1980. In an earlier judgment of this Court and I was a party to the same, in the case of Coats (India) Ltd. v. Collector of Central Excise, Bombay-11, in appeal No. ED (Bom.) A. No. 28 of 1982, this Court had held that the order was not an adjudicating order and was not appealable under Section 35B(1)(a) and I had agreed to that, because, the dictionary meaning was not cited by the Learned Counsel for the appellant and while passing the judgment the word adjudicating was taken in a very narrow and not in a popular sense. Now, I change my view and hold that the order passed by the Collector of Central Excise in the instant case was passed as an adjudicating authority and he had fully applied his mind while arriving at a decision. I am of the view that definition of adjudication given by John B. Saunders Law Dictionary 8th edition is correct, which has been cited above. 13. This point had been a subject matter of argument before a larger bench consisting of 5 members provided by Justice Shri F.S. Gill, President of the Tribunal, while deciding Appeal No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ving been used or the purpose and in the manner stated in the application or are not shown to the satisfaction of the proper officer to have been lost or destroyed by natural causes or by unavoidable accident during transport from the place of procurement to the applicant s premises or during handling or storage in the premises approved under Rule 192 the applicant shall, on demand by the proper officer, immediately pay the duty leviable on such goods. The concession may at any time be withdrawn by the Collector if a breach of these Rules is committed by the applicant, his agent or any person employed by him. In the event of such a breach, the Collector may also order the forfeiture of the security deposited under Rule 192 and may also confiscate the excisable goods, and all goods manufactured from such goods in store at the factory . 16. The learned Authorised Representative has referred to the judgement of the High Court in the case of Bavaji and Motibhai v. Inspector of Central Excise and Others where the Honourable High Court has held that the word accident in Rule 145 includes theft . Furthermore, the word lost as mentioned in Rule 147 would also include theft . Rule 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation given by the Calcutta High Court with reference to Rule 147, which uses the same expression, viz., unavoidable accident , and in a similar context. The learned representative of the Department could not quote any authority to the contrary. We have, therefore, been guided by the decision of the Calcutta High Court, which would apply to the facts of this case. 4. On the second issue, in learned brother has explained the reasons which have led him to differ from the view earlier taken by the West Regional Bench (of which he was a member) and to hold in effect that under Section 35B(1)(a) of the Central Excises and Salt Act (as amended) an appeal lies to the Tribunal against a decision or order of a Collector of Central Excise as an adjudicating authority not only where the decision or order is relatable to Section 33 ibid but also under any other section of that Act or the Rules thereunder. I propose to reinforce his reasoning with reference to the provisions relating to the Tribunal, as inserted through the Finance (No. 2) Act, 1980. 5. A direct consequence of the view previously taken by the West Regional Bench in the case of Coats of India Ltd., would be that, where an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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