BHAGABATI PRASAD BANERJEE, J.

( 1 ) THIS writ application is directed against an order dated 12th February, 1985 passed by the Collector (Appeals) wherein it was held that the Additional Collector of Central Excise who passed the original order requiring the petitioner company to pay Central Excise duty amounting to Rs. 62,874/- under the Central Excises and Salt Act, 1944 read with Rule 9 (2) of the Central Excise Rules, 1944 and the penalty of Rs. 5. 000/- for contravention of the Central Excise Rules, is not an authority lower in rank to the Collector of Central Excise and as such it was held that the appeal should be decided by the Central Excise and Gold (Control) Appellate Tribunal and that consequently, ft was held that the Collector of Central Excise (Appeals), Calcutta had no jurisdiction to entertain and/or dispose of the appeal under the law. The question of law that is involved In this case is whether the Additional Collector of Central Excise is an authority lower in rank to the Collector of Central Excise or not and that If it is held that the Additional Collector of Central Excise is not lower in rank to the Collector of Central Excise, in that event, the appeal against the order passed by the Additional Collector shall lie to the Appellate Tribunal, namely, the Special Bench of CEGAT, New Delhi and on the contrary, if it is held that the Additional Collector of Central Excise is lower in rank to the Collector of Central Excise, In that event, the appeal which was filed by the petitioner before the Collector of Central Excise (Appeals) Calcutta would be held to be maintainable and the order dated 12th February, 1985 passed by the Customs Excise and Gold (Control) Appellate Tribunal, Calcutta Bench would be illegal. The fact in short relevant for the purpose of determination of this question Is as follows:

( 2 ) IT was alleged that the petitioner company availed irregular exemption under Notification No. 71/78, dated 1-3-1978 as amended by Notification No. 91/78, dated 31-3' 1978. Notification No. 71 /78, dated 1 -3-1978 exempted the gas falling under Tariff Item No. 14h upto a value of Rs. 5 lakhs in respect of clearance beginning from 1 -4-1978, provided that the total value of clearances during the proceeding 11 months ending on 28-2-1978 did not exceed Rs. 13. 75 lakhs. As it was found that though the value of the clearance effected from 1-4-1977 to 28-2-1978 in respect of oxygen and dissolved acetylene gas exceeded the aforesaid limit of Rs. 13. 75 lakhs, the petitioner was granted exemption computing the value of clearance at Rs. 13. 55 lakhs, as the petitioner did not declare the production and clearance value of Acetylene Gas during 1 -4-1977 to 17-6-1977. Thereby the petitioner enjoyed exemption for clearance effected by them till 29-6-1978. In the Show Cause Notice it was alleged that the petitioner company had contravened the provision of Rules 9 (1), 173g and 173q of the Central Excise Rules, 1944 inasmuch as the petitioner company availed irregular exemption under Notification No. 71/78, dated 1-3-1978 as amended by Notification No. 91/78, dated 31 -3-1978 in respect of Oxygen and dissolved Acetylene Gas falling under Tariff Item No. 14 (H ).

( 3 ) BY the said Show Cause issued by the Additional Collector of Central Excise, Patna on 27th of March, 1985 the petitioner company was required to pay the Central Excise duty amounting to Rs. 62,874/- under the Central Excises and Salt Act, 1944 read with Rule 9 (2) of the Central Excise Rules, 1944 and also a penalty of Rs. 5. 000/- for contravention of Central Excise duty. In the said proceeding, the petitioner company was found liable to pay a sum of Rs. 62. S74/- and a penalty of Rs. 5. 000/ -. Thereafter, against the said order dated 27th of March, 1984 passed by the Additional Collector of Central Excise, Patna, the petitioner preferred an appeal before the Collector of Central Excise (Appeals) on 9-10-1984. Thereafter, the said appeal was not entert

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