TMI Blog1963 (7) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner had to keep proper accounts of the stock of tobacco in the warehouse. On a check by the Excise authorities, his stock was found short by a substantial quantity. This made the petitioner liable to certain penalties, under the Central Excise Rules, 1944 (Rule 223-A). The Collector of Central Excise called upon him to show cause, why a penalty should not be inflicted upon for the shortage. After receiving the petitioner's explanation, the Collector found that the explanation was not satisfactory and imposed on the petitioner a penalty in a sum exceeding a lakh of rupees, under Rule 223-A of the Central Excise Rule. Section 35 of the Central Excises and Salt Act (Central Act I of 1944), gave the petitioner a right of appeal to the Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue, remanding the matter to the original tribunal for fresh enquiry, the Collector of Central Excise had no jurisdiction to undertake a de novo enquiry. The learned Judge, thereupon, granted the petitioner's prayer, and made the rule Nisi absolute. From this decision, the present appeal is filed by the Collector of Central Excise. 3.The main argument pressed before us, by the learned Advocate-General who appeared for the appellant, is that the words in the aforesaid appellate order of the Central Board of Revenue, which have been italicised by us, expressly reserve the merits of the case to be gone into by the original tribunal, and therefore this gave jurisdiction to Collector of Central Excise, to undertake a de novo enquiry. 4.After ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertiorari of the High Court under Art. 226 of the Constitution. The powers under Section 35 are certainly far wider. To determine whether, in the present case, the proceedings are open to a de novo enquiry, one has necessarily to interpret the term of the appellate order of the Central Board of Revenue. It will not be proper to draw an analogy from certiorari proceedings. 6.Section 35 of Central Act 1 of 1944 enacts a self contained set of rules, for dealing with such matters initially, there is an issue between the state on the one hand and the subject of the other, leading to an enquiry of a penal nature, by an original Tribunal, namely the Collector of Central Excise, followed by the infliction of the penalty of confiscation or fine or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the jurisdiction of the original tribunal which imposed the penalty and are brought entirely within the jurisdiction of the appellate Tribunal. The appellate Tribunal has been given powers of the widest character, which will certainly include, as pointed out by the learned Judge (Ramachandra Iyer, J.) a power of remand. Finality also attaches to the order of the appellate Tribunal, subject only to the orders passed by the Revisional Authority. This would clearly show that, after the disposal of the matter by the Appellate Tribunal, jurisdiction can be revived in the original Tribunal only if there are specific directions in the appellate order to that effect. If the appellate order merely annuls the original order without containing an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd parcel of the appellate order of the Central Board of Revenue, whose terms are neither more nor less than what has been extracted at the beginning of this judgment. 8.Taking up the first point we agree with the view of the learned Judge that the italicised words, "without prejudice to the merits of the case" cannot be construed as equivalent to conferment on the Collector of Central Excise jurisdiction to make a de novo enquiry. The italicised words can mean only that the appellate authority had not gone into the merits of the case, but has disposed of the matter on a preliminary ground. The preliminary ground may embrace a diversity of reasons. It may be one of lack of jurisdiction in the original Tribunal; it may be one of limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X
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