S. Kalyanam, Member (J)

1. This appeal is directed against the order of the Additional Collector of Central Excise, Belgaum, dated 26-8-1988 appropriating a sum of Rs. 50,000/- by enforcing the B-11 Bond executed by the appellant during the pendency of adjudication when the seized goods viz. 170 TV sets were released provisionally and a fine of Rs. 1,000/- imposed under Rule 173Q of the Central Excise Rules.

2. When Shri Alimchandani, the learned Consultant for the appellant, initially started making submissions, I wanted him to clarify a doubt which I entertained while going through the papers before me. I questioned the learned Consultant as to how the present appeal is competent against an order forfeiting a sum of Rs. 50,000/- in enforcing a clause in the B-11 Bond which was executed by the appellant at the time when the goods were provisionally released, pending adjudication. Attention of the learned Consultant was also drawn to similar questions having been settled by the Tribunal in which a consistent view had been taken that forfeiture of a sum specified in a Bond executed by a party during the pendency of adjudication for failure to observe a certain condition would not be an order of adjudication appealable under the Act. The learned Consultant submitted that he has nothing to say in this regard.

3. Heard Shri K.K. Bhatia, the learned S.D.R.

4. The operative portion of the impugned order relevant for purpose of deciding the issue with reference to the competence and maintainability of the appeal before a statutory Tribunal under the provisions of the Central Excises and Salt Act, 1944, the 'Act' for short, may be extracted for purposes of convenience :

"Since the said 170 TV sets valued at Rs. 6,32,400/- which are liable for confiscation were released to the party provisionally and since the same have already been disposed of by the party, the same are not available for confiscation in terms of the B-11 Bond executed by them. In the above circumstances, I, therefore, order appropriation of the entire amount of Rs. 50,000/- (Rupees Fifty Thousand Only) furnished in the form of bank guarantee to the Central Government as penalty for not being able to produce the goods for confiscation."

Under Section 35B of the Act, any person aggrieved by a decision or order passed by the Collector of Central Excise as an adjudicating authority (emphasis supplied) may appeal to the Appellate Tribunal against such an order. Section 2(a) of the Act defines "adjudicating authority" as an authority competent to pass any order or decision under the Act but does not include the Central Board of Excise and Customs, Collector of Central Excise (Appeals) or Appellate Tribunal. Section33 of the Act in express terms provides that where by the rules made under the Central Excises and Salt Act anything is liable to confiscation or any person is liable to a penally, such confiscation or penalty may be adjudged by the officers specified therein. There is, therefore, in clear terms, a duty by the specified officers under the Act to adjudge cases of confiscations and penalties by a judicial process and the function is a quasi-judicial function subject to the principles of natural justice. 'Adjudicate' means to hear or try and decide judicially. The word "adjudication" is defined as 'giving or pronouncing a judgment or decree" in the Law Lexicon by T.P. Mukherjee. In the present case, the goods in question viz. TV sets were seized by the authorities as offending goods pending adjudication and admittedly during the pendency of adjudication, the appellant herein sought release of the goods on a provisional basis and, accordingly in exercise of the power under Rule 206, Clause (3) of the Central Excise Rules, 1944, pending orders of adjudication, the Central Excise Officer released provisionally the goods in favour of the owner viz. the appellant herein on taking a Bond from him in form B-11 as prescribed in terms Rule 206 referred to supra whereunder it i