ORDER
S.D. Jha, Vice-President (J)
1. This order disposes of the respondents preliminary objection that under Section 35E of Central Excises and Salt Act, 1944 hereinafter called the Act, the Central Board of Excise and Customs could not direct Collector to file the present application to the Tribunal for determination of the points set out in the application.
2. Before taking up the objection itself for consideration it is necessary to recite certain facts briefly. After introduction of Explanation II in Tariff Item 15A with effect from 1.3.1979 the Assistant Collector of Central Excise, Pune served notice dated 4.3.1981 on the respondents manufacturers alleging that relevant goods manufactured by them were only insulated material not identifiable as electrical insulators, insulating fittings, parts of such insulating fittings and insulatorsin commercial trade parlance and calling upon them to show cause why the goods be not classified under Tariff Item 15A(2) of Central Excise Tariff instead of Item 68 ibid. After following the usual procedure the Assistant Collector of Central Excise by order dated 10.7.1981 dropped the show cause notice.
3. Collector of Central Excise, Pune in exercise of revisionary powers vested in him under the then obtaining Section 35A(2) of the Act issued notice dated 4.9.1981 calling upon the manufacturer respondents to show cause why the order of the Assistant Collector be not set aside and order as deemed fit passed. After following the usual procedure the Collector of Central Excise by order dated 20.2.1983 for the reasons set out in the order held that industrial laminates of insulating grades except the unclad glass epoxy laminates would be correctly classifiable under Tariff Item 15A(2) and Explanation ll(b) under the Item would not cover them. This order was challenged in appeal by the respondents manufacturers through Appeal No. ED/SB/1217/83-C (appellant in Appeal No. ED/SB/1217/83- C). By Order No. 467/87- C dated 30.6.1987 the Tribunal disposed of this appeal. From a perusal of the said order it is seen that Shri A.S. Sundar Rajan, JDR for the respondent Collector of Central Excise, Pune in view of Tariff Advice 47/80 dated 4.8.1980 of the Central Board of Excise and Customs did no contest classification of copper clad glass epoxy laminates. He, however, disputed classification of industrial laminates (insulating grade) which is unclad plastic laminates. Grounds urged by him in support of this challenge are detailed in that order. The Tribunal, however, after detailed discussion following its earlier decision in the case of . Bakelite Hylam Limited, Hyderabad v. Collector of Central Excise, Hyderabad 1985 ECR 2334 (Cegat) held industrial laminates (insulating grade) plastic unclad also as properly classifiable under T.I. 68 and not T.I.15A(2) of the Tariff and modified the order in revision dated 20/26.2.1983 passed by the Collector of Central Excise, Pune.
4. The present application (Appeal No. ED/SB/1098/84-C) by the Collector of Central Excise, Pune presented on the direction under Section 35E(1) prays for setting aside the order in revision passed by the Collector in so far as it relates to classification of unclad glass epoxy laminates of type FC. Ordinarily this application should have been linked up by the Registry for hearing along with Appeal No. ED/SB/1217/83- C disposed of by Order No. 467/87- C dated 30.6.1987 but through some confusion this was not done. In fact on 13.11.1987 Shri Sundar Rajan made a grievance that Shri V. Lakshmikumaran, Advocate who appeared at the hearing of Appeal No. ED/SB/1217/83 -C for the appellants M/s. Formica India Ltd. inspite of knowledge of the present application by the Collector of Central Excise (Appeal No. 1098/84-C) had not brought the fact to the notice of the Tribunal. However, at the hearing dated 7.12.1987 both parties agreed that inspite of the above anomalous position there was no legal bar in disposing of the present application (Appeal No. 1098/84- C) in spite of Order No. 467/87- C dated 30.6.1987 in the manufacturers apeal. This aspect therefore does not require any detailed deliberation.
5. Shri Lakshmikumaran’s objection is that under Section 35E(1) the Board could call for and examine the record of any proceeding in which a Collector of Central Excise as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and then could direct the Collector to apply to the Appellate Tribunal for the determination of points arising out of decision or order as may be specific. He submitted that the Collector had not passed the order as an adjudicating authority but as a revisionary authority and, therefore, Board had no jurisdiction to either call for the record or to issue direction under the provision.
6. Shir Sundar Rajan, JDR maintained that even though the Collector of Central Excise may have acted in exercise of his revisionary powers under Section 35A(2) he did not cease to be an adjudicating authority and the order passed by him must be held to be one as having been passed by an adjudicating authority and the Board possessing jurisdiction to call for record of such proceedings to examine its legality and correctness and issue directions for filing application to the Appellate Tribunal in terms of the provision. Section 35E(1) is reproduced below:
“The Board may, of its own motion, call for and examine the record of any proceeding in which a Collector of Central Excise as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety 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.”
The order of the Collector shows that he was exercising his revisionary powers under Section 35A (2) of the Act as it then stood. Distinction and difference between an adjudicating authority and a revising authority is well understood and the role of adjudicating authority in the field of central excise is comparable to trial court in civil law and criminal law. This apart from the narration set out above it would be seen that in appeal filed by the respondent manufacturer (No. ED/1217/83- C) – the manufacturer was appellant in the appeal – the classification of the product after taking note of learned Departmental Representative’s submissions against an earlier Tribunal decision has already been decided as being one under Tariff Item 68. Therefore we fail to see how the present appeal by the Revenue against the aforesaid classification could be maintained. We therefore partly for the reason uphold the respondents objection and partly for the reason set out as aforesaid dismiss this appeal as not maintainable.