TMI Blog1984 (1) TMI 330X X X X Extracts X X X X X X X X Extracts X X X X ..... erred to High Court : (1) Whether Review Proceedings under Section 35A of the Central Excises and Salt Act as it stood at the relevant time could be invoked by the Collector of Central Excise at the instance of an assessee who had not availed of his right of appeal ? (2) Whether the Collector of Central Excise was entitled to refuse to exercise the powers vested in him without assigning any reason for the same ? (3) Whether the refusal of the Collector to consider the review application under Section 35A did not amount to an order or decision against which an application could be preferred by the applicants under Section 36 of the Central Excises and Salt Act, as it stood at under Section the relevant time ? 2. Shri V. Lakshmiku ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lector of Central Excise, Kanpur, the Deputy Collector of Central Excise, Kanpur by communication dated 9-4-1980 informed the applicants that order dated 19-11-1979 passed by the Assistant Collector was an appealable order and an appeal against the order lay to Collector of Central Excise (A), New Delhi; that they should have preferred an appeal to the Appellate Collector. On the basis of the facts and matter Review could not be initiated under Section 35A of the Act. 3. The applicants then filed appeal to the Tribunal. The Tribunal by order dated 22-7-1983 in appeal No. 570/1980-B held that the advice contained in the letter conveyed by the Deputy Collector could not be considered an order or decision which could be appealed against und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5A of the Act was wide and could be exercised both in favour of the Revenue and the assessee. The Collector could not arbitrarily decline to exercise the power in favour of the appellants, if the conditions for exercise of the same were fulfilled. He could not on the ground that the appellants had not filed an appeal decline to exercise the Review power vested in him. In support of his this argument, Shri Chandersekharan relied on Hirdya Narayan v. Income-tax Officer, Bareilly, (1971) 1 SCR 683 ; Thyl. Bombay Ammonia Pvt. Ltd. v. State of Tamil Nadu, AIR 1976 SC 2136. Shri Chandersekharan, further submitted that where a proper application to the Tribunal for stating a case and referring it to High Court was made by the parties, it was the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t and it was also stated that the petition to the Collector of Central Excise, Kanpur furnishing in detail the facts of the case as well as the grounds on which the order of the Assistant Collector of Central Excise has been assailed were annexed. In this application, facts of the case, paras 1 to 4 would show that the applicants claimed benefit of Rule 56A of the Rules in respect of fresh un-used melting scrap. From ground-A, it would appear that the applicants claimed that they could get benefit of Rule 56A of the Rules without formal permission. From para B of the grounds, it would be seen that applicants claimed that they were entitled to benefit of Notification No. 144/75-C.E., dated 7-6-1975 without following the procedure stipulated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is meaning, the true meaning and import of the term an order relating to the determination of any question having relation to the rate of duty of excise can be properly understood only when the order is read not in isolation but alongwith pleadings in the case. Thus read, there can be no doubt that the appeal to the Tribunal involved questions relating to interpretation of Rule 56A of the Rules and Notification No. 144/75-C.E., dated 7-6-1975. These would be questions relating to rate of duty of excise. Section 35G of the Act is clear that it is excluded in its application where the order among other things relates to the determination of any question having a relation to the rate of duty of excise. In view of this, Shri Lakshmikumaran ..... X X X X Extracts X X X X X X X X Extracts X X X X
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