9911796707
TMI Blog1989 (9) TMI 213X X X X Extracts X X X X X X X X Extracts X X X X ..... proprietary medicine falling under T.I. 14E of the Central Excise Tariff till the end of financial year 1979-80. Subsequently in the year 1980-1981 the company classified the pain balm under T.I. 68 as an Ayurvedic Medicine. The ingredients of the balm manufactured prior to 1980-81 and after 1980-81 are as follows :- During and after 1980-81 Prior to 1980-81 Kapoor Powder -4% Camphor IP 4% Neeli Gond Ka Tel -10% Eucalyptus Oil IP 5% Sarala Tel 10% Lemon Grass Oil IP 2.5% Pudina Ke Phool -4.5% Menthol IP 3% Ganda Ninaka Tel -2.5% Methyl Selicylate IP 2.5% Ajowan Phool -0.1% Oil Gajuput IP 55.35% Dal Chini Tel -1% Thymol IP 1.0% Gandupura Ka Tel -10% Turpentine Oil IP 10% Base Q.S. Base Q.S. On examining the classificati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 44 called for and examined the records pertaining to the order-in-review No. IV/16/787/81-VC, dated 5-1-1985 passed by the Collector. Upon such examination, the Board has found that the said Order-in-review is not a legally correct and proper order and has accordingly directed the Collector of Central Excise, Madras vide Board's letter F.No. 199/30/85 A.U. (BMB), dated 28-8-1985 to file an application before the Customs, Excise and Gold (Control) Appellate Tribunal." Accordingly, this appeal has been filed as an application under Section 35E(4) of the Central Excises and Salt Act, 1944 as stated in letter No. V/14E/2/174/85 JC, dated 6-11-1985 from the Collector of Central Excise, Madras to the Assistant Registrar, Customs, Excise and Gold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent case, the Collector of Central Excise, Madras did not pass his order dated 3/5-1-1985 as an adjudicating authority, but he passed the said order as a reviewing authority under Section 35A of the Act, as it then existed. Therefore, the Board could not legally review the Collector's order-in-review under Section 35E(1) of the Act. Further, even under Section 35B(1) an appeal could not be filed before this Tribunal against an order-in-review passed by the Collector under Section 35E(2) of the Act. He has, therefore, argued that the present appeal is not maintainable in law. Shri Sundar Rajan has drawn our attention to definition of "adjudicating authority" as laid down in Section 2(a) of the Act, which says that "Adjudicating authority" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iety of any such decision or order and may, by order, direct such Collector to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the Board in its order. It is very clear from this provision that the Board may review an order passed by a Collector of Central Excise if such an order has been passed by the Collector as an Adjudicating Authority. In this case the Collector of Central Excise, Madras passed his order-in-review dated 3/5-1-1985 under the erstwhile Section 35A of the Act. He passed this order as a reviewing authority and not as an adjudicating authority. Section 35B of the Act provides that any person aggrieved by any of the following orders may appeal t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble to trial court in civil law and criminal law". It was held by the Tribunal that the Board's jurisdiction under Section 35E(1) of the Act was limited to cases where the Collector passed an order as an adjudicating authority and not as a revisionary authority. Our view is the same. Since in the present case the Collector of Central Excise, Madras passed his order dated 3/5-1-1985 as a reviewing authority and not as an adjudicating authority, the Board could not exercise its review power under Section 35E(1) of the Act to review said order of the Collector and issue direction to file an application under Section 35E(4) before this Tribunal. In view of this legal position, the application filed by the Collector of Central Excise, Madras bef ..... X X X X Extracts X X X X X X X X Extracts X X X X
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