TMI Blog2000 (8) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... ound that the adjudicating authority had committed an error in passing his order. If this position is accepted then the provisions for adjudication in the Act and the Rules, the provision for appeal in the Act and the Rules will lose their relevance and the entire exercise will be rendered redundant. This position in our view, will run counter to the scheme of the Act and will introduce an element of uncertainty in the entire process of levy and collection of excise duty. Such a position cannot, be countenanced. The view taken by us also gain support from the provision in sub-rule (3) of Rule 11 wherein it is laid down that where as a result of any order passed in appeal or revision under the Act, refund of any duty becomes due to any pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ein, was manufacturer of jute hessian floked with nylon flocks under L-4 licence issued under the Act. The respondent filed a classification list in which it was claimed that the said product comes under tariff item 22-A. The Assistant Collector after examining the contents of the product and the particulars furnished by the respondent passed an order on 21-1-78 holding that the product in question is classifiable under tariff item 22-B and not under tariff item 22-A and the applicable rate of duty would be 25% ad valorem. In the said order the Assistant Collector expressly stated that the assessee may prefer an appeal against his order to the Collector (Appeals). The assessee neither challenged the said order by filing any appeal nor did i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lated depends on the answer to the question whether the jurisdiction of the Assistant Collector while considering an application for refund of duty paid is independent of the jurisdiction exercised by him in determining classification of the product in question. It is the contention of the respondent assessee that the jurisdiction to determine the validity and sustain ability of the claim for refund of duty is an independent jurisdiction and in exercise of that jurisdiction the Assistant Collector is not fettered by any order passed by the authority regarding classification of the product. As such the Assistant Collector could independently consider the claim for refund of duty on merits without being fettered by the previous order passed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no claim for refund of any duty shall be entertained. Explanation : For the purposes of this rule, "refund" includes rebate referred to in Rules 12 and 12A." 7.Section 35 of the Act provides regarding appeals to Collector (Appeals). In sub-section (1) thereof it is laid down that any person aggrieved by any decision or order under the Act by a Central Excise officer lower in rank than a Collector of Central Excise may appeal to the Collector (Appeals) within 3 months from the date of communication to him of such decision or order. In the proviso to sub-section (1) the power is vested in Collector (Appeals) to extend the period by further three months if he is satisfied that the appellant was prevented by sufficient cause from presentin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after such inquiry as he deems fit approve the list with such modifications as are considered necessary and all clearances are to be made only thereafter. 9.A right of appeal is a creature of the statute. It is a substantive right. An order of the appellate authority is binding on the lower authority who is duty bound to implement the order of the superior authority. Refusal to carry out the direction will amount to denial of justice and destructive of one of the basic principles in the administration of justice based on hierarchy of authorities. 10.Coming to the question that is raised there is little scope for doubt that in a case where an adjudicating authority has passed an order which is appealable under the statute and the party a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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