9911796707
TMI Blog1998 (8) TMI 269X X X X Extracts X X X X X X X X Extracts X X X X ..... 21-5-1991, a direction was given to the Superintendent, Central Excise, Moradabad, to determine the benefit to which the petitioner is entitled according to certain orders of the Supreme Court and the Collector (Appeals), as the case may be, with respect to three sugar years and communicate his orders to the present appellant. The Hon'ble High Court's order contained a further direction as follows : "The Counsel for the petitioner says that he has also claimed interest. This plea, if raised before the Superintendent, Central Excise, may also be dealt with by him according to law". Persuant to the said direction of the Hon'ble High Court, the Superintendent, Central Excise, by order, dated 23-9-1991 allowed interest at the rate of 18% on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e instant case, the Collector had issued the direction, dated 11-12-1991 under Section 35E(2) was to the Assistant Collector, Central Excise, Moradabad and not to the Range Superintendent, who passed the order granting interest the direction of the Collector was illegal. 4. The Collector by the impugned order held that the High Court had not passed any direction on the grant of interest. It had only directed that a request if made, may be examined by the Superintendent of Central Excise according to law. The Superintendent was, therefore, required to examine the plea of interest as per the provisions of law in accordance with the power vested in him, if any, for grant of such interest. Ld. Collector held that it cannot be claimed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ector (Appeals), that the Collector can pass direction under sub-section (2) to the Adjudicating Authority. In that event the question of authorising the Adjudicating Authority to file an application under sub-section (4) would not arise. The Adjudicating Authority acquires the power to file an application by virtue of sub-section (2) read with sub-section (4). Since the scheme appeared to provide for authorising any other officer to make an application for the determination of any points arising out of the decision or order of the Adjudicating Authority, it was not necessary that the direction must be passed under sub-section (2) to the Adjudicating Authority alone. 5. Appearing before us Shri A.N. Haksar, ld. Advocate submitted tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raphs 5 & 6 held that the direction under Section 35E(2) can be only to the very adjudicating authority who passed the adjudication order. As regards the finding of the Collector (Appeals) that the Superintendent could not have passed the order relating to interest since there was no provision for awarding interest by the Central Excise Department at the relevant time, ld. Counsel submitted that the Superintendent was acting on the basis of a direction issued to him by the Hon'ble High Court under Article 226 of the Constitution and not pursuant to any power vested in him as Superintendent of Central Excise. It was, therefore, not correct to hold that since the Superintendent had no power to award any interest, the order passed by him allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Collector of Central Excise may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has passed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct such authority to apply to the Collector (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Collector of Central Excise in his order". On a careful reading of the provision of Section 35E(2), it is quite clear that the power given to the Collector is to call for and examine the record of any proceeding in which an adjudicating authority subordinate to him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On the second point that the Superintendent had acted on authority given to him by the Hon'ble High Court under Article 226 of the Constitution and not under the powers given to him under the Central Excise Act, we do not find any material from the Hon'ble High Court's order to support that contention. The Hon'ble High Court's order only stated that - "This plea if raised before the Superintendent Central Excise, may also be dealt with by him according to law". The Hon'ble High Court had neither allowed the claim of the petitioner for interest nor had directed the Superintendent to award the same. The simple direction given by the Hon'ble High Court was that the Superintendent should deal with any claim for interest in accordance with law ..... X X X X Extracts X X X X X X X X Extracts X X X X
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