ORDER
S.K. Bhatnagar, Vice President
1. This is an appeal against the order-in-original No. 2/88, dated 9-2-1988 passed by Shri B.P. Verma, I.R.S., said to be Collector of Central Excise, “Adjudication”, New Delhi with reference to Gold (Control) Act, 1968.
2. Initially, the learned Counsel had argued that the order-in-original had abated in view of the repeal of the Gold (Control) Act. But subsequently in view of the Larger Bench decision of this Tribunal, he did not press this point further and instead he raised a point regarding jurisdiction and authority of the adjudicating officer, Shri B.P. Verma.
3. He stated that adjudicating officer, Shri B.P. Verma was Director of Publications when he heard the matter and passed this order and he was not the Collector of Central Excise, (Adjudication) as mentioned in the order. He drew attention to Notification No. 464/86-C.E., dated 9-12-1986 and C.B.E.C’s order No. 208/27/86-EX. 6, dated 9-12-1986 in this connection and stated that this Notification vests the power of Collector of Central Excise, in the Director of Publications whereas, their case was a Gold Control case, which is required to be adjudicated under the Gold (Control) Act by a Gold Control Officer competent to adjudicate such cases and could not be decided by the Director of Publications invested with the powers of Collector of Central Excise only.
4. Under the CBEC’s order cited above, Director of Publications was assigned all cases of Collector’s power pending for investigation and adjudication with the Collector of Central Excise, Delhi as on 9-12-1986. However, Shri B.P. Verma was not Collector of Central Excise, Delhi when he adjudicated this case. He was Director of Publications and merely because he was allowed to exercise the powers of Collector of Central Excise does not mean that he could hear and decide gold control cases, ipso facto. In fact the C.B.E.C. itself had no power to assign gold control cases to Director of Publications. Under the Gold (Control) Act the appointment and functions of administrator and Gold Control Officers are governed by Section 4 and it is the Central Government which is empowered to appoint such officers by Notification. That apart SOS issued in 1963 under Defence of India Rules, Collectors of Central Excise were given power of confiscation of gold found and seized under Rule 126L(1) or Rule 126L(2), but does not vest him with the power of imposing penalty.
5. It was also his submission that by being invested with the powers of a Collector of Central Excise, one does not become Collector of Central Excise. Had this been so, two Deputy Collectors of Central Excise who had been invested with the powers of Collector under two Notifications No. 5/84, dated 11-2-1984 and 190/76, dated 12-6-1976 should also call themselves as Collector of Central Excise and not as Deputy Collectors which is not the fact.
6. Similarly some Additional District Magistrates are vested with the powers of the D.M but cannot designate themselves as District Magistrates.
7. It is also his contention that in any eventuality the Notification No. 464/86 and the CBEC’s order were issued only under the authority of the Central Excise Act and Rules and not the Gold (Control) Act. In this connection, he would like to invite attention to 1992 (196) ITR 149 (SC), AIR, 1955 SC 414, 1991 (188) ITR 464.
8. It was his contention that the adjudicating officer was never authorised by any Notification or otherwise by the Central Government acting under the authority of Section 4 of the Gold (Control) Act to decide any case under that Act. He was not even appointed as a Gold Control Officer under Section 4(2) of the G.C.A. by the Central Government.
9. The CBEC has not been authorised to exercise any powers of the Central Government under the Gold (Control) Act. The powers of CBEC under Rule 4 of the Central Excise Rules are for the purposes of the said Rules and are limited in their scope and application.
10. In fact, an Additional Collector of Central Excise may be a Collector for certain purposes of Central Excise Law, but he is not so for the Gold (Control) Act as held by the Tribunal in its Order published in 1986 (26) E.L.T 660.
11. It was his submission that Director of Publications wrongly self-designated himself as Collector, “Adjudication”, despite there being no order or Notification to that effect.
12. The learned DR opposed the above contentions and said that Notification No. 464/86-C.E. and CBEC’s Order No. 208/27/86-CX.. 6 show that the Director of Publications had been invested with the power of Collector of Central Excise and since Collector of Central Excise is undisputably an officer competent to adjudicate cases under Gold Control Act, the said officer automatically gains powers to adjudicate by virtue of Section 78A of G.C.A. without limit.
13. Furthermore, having accepted the jurisdiction of the Collector at the time of adjudication, it was not open for the appellant to raise this issue before CEGAT. In this connection, he would rely on the ratio of the orders reported in 1990 (47) E.L.T. 286.
14. On merits, it is an admitted fact that 27 cases of new gold ornaments weighing 4.670 grammes are found in excess when compared with the statutory records and no satisfactory explanation was given by the partner and Manager who were present at the time of the visit of officers. Their letter stating that they have forgotten to add the weight of the pearls is not acceptable as in the Registers gross weight has to be entered. Moreover, they themselves admitted that it was the mistake of the Accountant. In these circumstances, the Collector’s order was justified.
15. We have considered the above submissions. We observe that the learned Advocate is right in pointing out that Notification No. 464/86-C.E., dated 9-12-1986 is a Notification issued under Section 2 of the Central Excises and Salf Act, 1944 read with Rule 4 of the Central Excise Rules, 1944. Under this Notification, the CBEC has appointed Director of Publications as a Central Excise Officer and invested him with the power of Collector of Central Excise for the purposes of investigation and adjudication of such cases as may be from time to time assigned to him by CBEC and by CBEC’s Order No. 208/27/86-CE-6, dated 9-12-1986, the CBEC had assigned to the Director of Publications cases for the purposes of adjudication including all cases of Collector’s powers pending with the Collector of Central Excise, Delhi as on 9-12-1986. We consider that the learned Advocate is also right in pointing out that this Notification is only for the purposes of Central Excise Act and Rules and did not cover Gold (Control) Act and Rules.
16. The learned Advocate is also right in pointing out that Gold Control Officers could only be appointed by the Central Government by a Notifications issued under Section 4 of the G.C.A and Central Board of Excise and Customs had no power under this Section or any other Section of the Gold (Control) Act to appoint Gold Control Officers or to invest Central Excise Officers or Collectors of Central Excise with the powers of Gold Control Officers competent to adjudicate Gold Control Cases.
17. The learned Counsel is also right in pointing out that merely because some of the powers of Collector of Central Excise were invested in the Directorate of Publications, he did not become Collector of Central Excise, New Delhi for all purposes.
18. He was also right in pointing out that S.0. 139, dated 9-1-1963 was issued under Defence of India Rules, 1962 [and not under Gold (Control) Act] and even this vests the Collector of Central Excise only with the limited power of confiscation of gold.
19. We, however, also observe that S.O. 2320 (1-8-1968 – GS II) had continued this power under Gold Control Ordinance, 1968. However, in spite of sufficient time and opportunity being given to the Departmental Representative, the Revenue has not been able to show any notification or orders issued by the Central Government under Section 4 of the Gold (Control) Act appointing Director of Publications (C & E) as Gold Control Officer competent to adjudicate cases arising under Gold (Control) Act.
20. The learned D.R. is also right in pointing out that under Section 78, G.C.A., any confiscation may be adjudged or penalty may be imposed without limit by a Gold Control Officer not below the rank of a Collector of Central Excise or Customs and undisputably, Shri B.P. Verma was an officer of the rank of a Collector of Central Excise & Customs, when he adjudicated the case. But in the absence of any notification under Section 4, the power of adjudication mentioned under Section 78 could not be exercised by him when he was posted as Director of Publications.
21. We could have ignored the technical error in the order in designating the adjudicating officer as “Collector of Central Excise (Adjudication)” when he was really a Director of Publications provided a Notification issued by the Central Government under Section 4 of Gold (Control) Act appointing such Director’s as Gold Control Officer was shown to us, but no such Notifications has been produced or even cited. Therefore, the Department’s contention regarding jurisdiction remains unsubstantiated. In these circumstances, we need not enter into the merits of the case and it is sufficient to observe on our part that the impugned “order” passed by Shri B.P. Verma, Director of Publications, in view of Board’s Notification and orders cited (supra) was without jurisdiction and did not amount to an order passed by the proper officer competent to decide such cases under the Gold (Control) Act, 1968.
22. The case is disposed of accordingly.