ORDER
S.K. Bhatnagar, Vice President
1. This is a stay application filed with reference to order of the Collector of Central Excise dated 1-9-1993 and styled as Addendum dated 24-1-1995.
2. The learned Counsel stated that the learned Collector has passed the final order-in-original No. 19/93, dated 24-1-1995 but after 16 months, they were surprised to receive this Addendum by which a demand of Rs. 1,55,151/-has been confirmed in respect of clearances of Cement Oxide Colour.
3. This demand was a part of the show cause notice and the matter had been heard and a final order had been passed in which this demand had not been confirmed. Therefore, it was not open to the Collector to issue now such an order subsequently.
It was his submission that after passing the order-in-original No. 19/93, the Collector became functus officio and no longer had any authority to pass any further order.
4. If however, he felt by any chance that there was any omission, it was open to him to bring the matter to the notice of the Board and for the Board to follow the appellate procedure. But it was not within the discretion or authority of the Collector to reopen the matter and pass such an order and that too even without issuing a notice.
5. In a similar matter, the Tribunal had also held that such an order could not be passed as the officer becomes functus officio of issue in an order reported in [1990 (46) E.L.T. 427].
6. He would therefore, pray for stay of operation of this order and further requested that since this is the only point involved, the appeal itself may be taken up and disposed of.
7. Learned D.R. stated that the papers with him are not complete and he does not have the copy of the show cause notice or any other communication which might have been exchanged.
8. On this learned Counsel for the appellants very fairly agreed to show him his file containing the show cause notice and the letter of the Assistant Collector dated 4-7-1994.
9. Ld. D.R. stated that what he wanted to check in particular was as to whether this amount had been demanded in pursuance of the Collector’s order or as a consequence thereof, but he does not have any record at this stage.
10. The learned Counsel stated that even the letter of the Assistant Collector dated 4-7-1984 has been issued 10 months after the date of the final order. Further, there is nothing in the operative part of the Collector’s order which would go to show that this demand has been raised in pursuance or as a consequence to the Collector’s order or flows therefrom.
11. We have considered the submissions. We feel that prima fade the learned Counsel’s contentions have a strong force. The impugned order describes itself as an addendum to the original order and has been signed by the Collector himself. It does not indicate that this additional demand is being made in pursuance of or as a consequence to the order No. 90/93. There is also nothing before us at this stage which would go to show that it flows therefrom.
12. In view of the above position we waive the pre-deposit of the amount in question and stay the recovery thereof during the pendency of the appeal. It is made clear that we are only staying the ‘addendum’ i.e. the so called that portion of the order and the amount mentioned therein.