2013 PLP 372 (PTD)

ROOH-UL-AMIN KHAN, J.

The appellants have filed this Appeal to seek answer to the following questions of law:-- (1) Whether as per facts and in the circumstances of the case "the Tribunal" has correctly interpreted the provisions of section 4(1) of the Central Excise Act, 1944 (hereinafter referred to as "the Act")? (2) Whether as per facts and in the circumstances of the case, "the Tribunal" taken into consideration the applicability of sections 3, 3-B and 4(1) of "the Act" read with Rules 7,9, 43, 44, 52, 226, 231-A, 236, 241, 243 and 244 of the Central Excise Rules, 1944? (3) Whether as per facts and in the circumstances of the case, the respondent has properly maintained the prescribed documents as required under "the Act", rules and procedure or to be guided by the Central Excise Officer? (4) Whether as per facts and in the circumstances of the case, the respondents has violated the procedure laid down in Central Excise Rules, 1944 while maintaining the documents RG-land Duty Production Report as required under sub-rule (1) of Rule 53, and sub-rule (1) of Rule 226 ibid? (5) Whether as per facts and in the circumstances of the case, "the tribunal" has rightly held that the assessable wholesale cash price under section 4(1) of "the Act" is correct and in accordance with law applicable to the matter? (6) Whether as per facts and in the circumstances of the case, various cement manufacturers can be termed as one class of consumer or separate as envisaged under section 4(1) of "the Act"? (7) Whether as per facts and in the circumstances of the case, an taxpayer is required to act and abide the provisions of "the Act" on his own or to be guided by central excise officer? (8) Whether as per facts and in the circumstances of the case, the leviable central excise duty has been paid by the respondent in terms of section 4(1) of "the Act" on the assessable wholesale cash price? (9) Whether as per facts and in the circumstances of the case, the Central Excise General Order No. 5/59 has been issued in accordance with the law and is applicable to the matter? (10) Whether as per facts and in the circumstances of the case, the principal of highest assessable price is in accordance with the provisions of section 4(1) of "the Act" and whether it applies only to assessment on retail price basis or all class of consumers? (11) Whether as per facts and in the circumstances of the case, the fixation of assessable tariff value within the meaning of subsection (2) of section 3 of "the Act" has correctly been appreciated by "the Tribunal"? (12) Whether as per facts and in the circumstances of the case, the proper determination of value has been made by the respondent in terms of section 4(1) of the Act"? (13) Whether as per facts and in the circumstances of the case, the valuation of contracted assessable value is to be determined in accordance with section 4(1) of "the Act" read with CEGO No. 4/59?

2. Brief but relevant facts of the case are that in pursuance of information to the effect that the respondent has assessed the central excise duty of his paper sacks of same kind and quality supplied to various consumers during the period from June, 1995 to June, 1998 at lower values. In consequence of the above said information, the staff of Intelligence and Investigation (Customs, Central Excise and Sales Tax), Peshawar visited the unit of respondent and found the information as correct. After probe into the matter, the respondent was called as he had violated the provisions of sections 3, 3-B and 4(1) of the Central Excise Act, 1944 read with Rules 7,9, 43, 44, 52, 226, 231-A, 236, 241, 243 and 244 of the Central Excise Rules, 1944 read with Central Excise General Order No. 53 of 1967. The respondent was found guilty of making short payment of central excise duty amounting to Rs.1,72,06,126 during period from June, 1995 to June, 1998, therefore, a contravention case was made against him which was sent to the Adjudicating Officer for adjudication.

3. After fulfilling all legal and codal formalities and after hearing both the parties, the Adjudicating Officer directed the respondent to pay the differential amount of central excise duty of Rs.1,72,06,126 along with additional duty under section 3-B of the Central Excise Act, 1944. He also imposed a penalty of Rs.50,000 under rule 210 of the Rules for violation of the provisions of the Act and the Rules.

4. Aggrieved with the aforesaid order passed by the Adjudicating Officer, the respondent filed an appeal before the Customs, Sales Tax and Central Excise, Appellate Tribunal, Peshawar Bench, Peshawar, who after hearing the parties, accepted the same vide judgment and order dated 10-6-2005. Hence this Appeal.

5. Learned counsel for the respondent at the very outset raised a preliminary objection regarding maintainability of the instant Appeal on the ground that the appeal is not filed by the competent person as provided by section 36-C of the Central Excise Act, 1944.

6. Before entering into the merits of the case, in light of the above referred preliminary objections, we would like to see the maintainability of the instant Reference, in its present form. For this purpose, the section 36-C of the Central Excise Act, 1944 is reproduced which reads as under:- "36C. Appeal to High Court.

(1) An aggrieved persons or the Collector may file an appeal in the High Court in respect of any question of law arising out of an order under section 35C. (2) The appeal under this section shall be filed within sixty days of the date upon which an aggrieved person or the Collector is served with notice of an order under section 35C. (3) Where an appeal is filed under subsection (1) by the aggrieved person, it shall be accompanied by a fee of one thousand rupees. (4) An appeal under this section shall be heard by a Bench of not less than two Judges of the High Court. (5)

(6)

(7)

(8)

"

7. Plain reading of the above quoted section provides that only an aggrieved person or the Collector may file an appeal in the High Court in respect of any question of law arising out of an order under section 35-C.

8. Perusal of the reference and a glance over the title of reference divulges that the instant Reference application have been filed by the two persons i.e. (i) Collector Sales Tax and Federal Excise and (ii) Additional Director Intelligence and Investigation Peshawar. The Memorandum of Reference is not signed by the above said two persons,-thus only by mentioning the designation of the persons in the title of Reference, it could not be ascertained that the Reference has been filed by the Collector. For this purpose, we turn the page and for looking at the power of attorney. The power of attorney, available on file, was perused with particular attention, which disclosed that the same has not been signed by the Collector, Sales Tax and Federal Excise. On the printed form, the word "Collectorate" is printed instead of "Collector" and the same has been affirmed by the stamp affixed under the signature of a person from Collectorate. The stamp affixed on the power of attorney also disclose that the power of attorney is not signed by the Collector rather by an unknown person from the Collectorate of Sales Tax, Peshawar.

9. Section 36C of the Act (ibid), as mentioned above, empowered only two persons i.e. Collector or aggrieved person. From the above said observation and perusal of the record, it is established that the reference has not been filed by the Collector. Now, the question arise whether person signed the power of attorney and have filed the Reference can be considered as an aggrieved person, the answer to this question would be a big No because the word used in section 36C of the Act (ibid) disclosed the aggrieved person along with Collector. In our views, the aggrieved person and Collector used in section 36C are significant. The aggrieved person denotes a person, who has got a legal grievance i.e. a person illegally and wrongfully deprived of anything to which he is legally entitled. The aggrieved person is not a person who suffers some sort of disappointment. In the instant case, the Director may not be termed as legally deprived of anything to which he was legally entitled. Moreover, in the instant case, if the term "aggrieved party" is referable to any officer of the Sales Tax then the word "Collector" would be a sheer addition to the statute and will become redundant. The legislature in its wisdom have purposely used and signified the two different expression i.e. "Collector" and "aggrieved person". It is golden principle of interpretation that the redundancy cannot be attributed to the legislature

10. This is also settled law that all the acts shall be done in the manner in which it is prescribed to be done and not another manner. In the instant case, the appeal being not filed by the Collector is incompetent and not maintainable in its present form.

11. Before 30th June, 2007, the provision of section 196 of the Customs Act, 1969 were synonymous to section 36C of the Central Excise Act, 1944. The Section 196 of the Customs Act, 1969 was amended and the word (Director of Intelligence and Investigation) and (Additional Director) were inserted by the Finance Act, 2007 (IV 2007). Before 2007, the section 196 of the Customs Act, 1969 was embodied with the same words as provided in section 36C of the Central Excise Act, 1944.

12. The question of maintainability in similar case came before the august Supreme Court of Pakistan in a case under Customs Act, title "Director, Directorate General of Intelligence and Investigation and others v. Messrs Al-Faiz Industries (Pvt.) Limited and others (2006 SCMR 129), wherein the law on the subject was laid down in the following terms:-- "It is pertinent to note that section 196 has specifically authorized the Collector to file appeals in the High Court on behalf of the Customs Department. It is well-settled and established principle of law that when the Legislature requires the doing of a thing in a particular manner then it is to be done in that manner and all other manners or modes of doing or performing that thing are barred." In Para. No.15 of the judgment (supra), the Hon'ble Supreme Court of Pakistan held that:-- "In the case of Khalid Saeed v. Shamim Rizvan and others 2003 SCMR 1505 this Court while considering the impact of violation or non-observance of the method prescribed by law for doing an act in a particular manner or mode observed that if the law had prescribed method for doing of a thing in a particular manner, such provision of law is to be followed in letter and spirit and achieving or attaining the objective of performing or doing of a thing in a manner other than provided by law would not be permitted." Thus, in the case (supra), the Hon'ble Supreme Court of Pakistan has settled the law that only the Collector is competent to file appeal/reference before the High Court within time provided by the Statute and no other person.

13. The above said judgment was followed by this Court in the case of Additional Collector Sales Tax v. Messrs Associated Industries Ltd. reported in 2009 PTD 1799 wherein it was held that:-- "Now the question arises whether with the approval of Collector or Additional Collector, an Assistant Collector can be considered as an aggrieved person and can file appeal on behalf of them? If this question refers to an appeal before the appellate Tribunal, the answer to the question would be in the affirmative because under section 194A of the Customs Act, 1969, and officer of Customs, aggrieved by an order passed by an officer of Customs as an Adjudicating Authority under section 179 of the Act, can file appeal before the appellate Tribunal. Similarly an officer of Customs aggrieved by an order passed by the Collector (Appeals) under section 193 or an order passed by the Board or Collector under section 195 of the Act, can file an appeal before the appellate Tribunal, if authorized by the Board in the official Gazette. But if the question relates to filing of an appeal in this Court under section 196 of the Customs Act, the answer would be in the negative. It is by now settled that so long as an appeal is not filed and verified by Collector, it cannot be held to be competent. The case of Director, Directorate-General, of Intelligence and Investigation and others v. Messrs Al-Faiz Industries (Pvt.) Ltd. and others (supra), may well be referred in this behalf."

14. In the instant case, admittedly, the Appeal has not been filed by the Collector and the Memorandum of Appeal has neither signed nor verified by the Collector, thus, deriving wisdom and respectfully following the dictum laid down by the Hon'ble Supreme Court of Pakistan in case reported 2006 SCMR 129, we are of the firm-view that the instant Appeal being not filed in accordance with the mandatory provision of law is not maintainable in its present form. Hence, this appeal being devoid of merits is hereby dismissed. KMZ/347/P Appeal dismissed.