S. Venkatesan, President

1. What is directly at issue in this case is a stay application involving an amount of Rs. 22,123.59. However, there has incidentally been raised an interesting and important question regarding the effect of Section 35E(f) of the Central Excises and Salt Act.

2. In this case, the Deputy Collector of Central Excise, Jamshedpur" and adjudicated a case relating to the classification of five items of "bolts and nuts" manufactured by the applicants, and also related charges alleging violation of various provisions of the Central Excise Rules. In his order dated 31.3.84, the Deputy Collector held that four of the items were correctly classifiable under Item 68 C.E.T. as claimed by the applicants, and the remaining item, namely, "stand stud", under T.I.52, as contended by the Department. However, he held the demand for duty in respect even of this item to be time-barred. He also absolved the applicants of the allegations levelled against them in the show-cause not ice.

3. The Collector of Central Excise, Patna, thereafter passed an order dated 30.3.85 in exercise of his powers under Section 35E(2), Central Excises and Salt Act. By this order he directed the Deputy Collector to file an appeal (sic) under Section 35E(4), Central Excises and Salt Act, before the Collector of Central Excise (Appeals), Calcutta, against the Deputy Collector's order-in-original dated 31.3.84, seeking a decision whether it was legal and justified to classify the four items of "nuts and bolts" under T.I.68, and to modify the Deputy Collector's order so as to hold these four items to be classifiable under T.I. 52.

4. The Collector (Appeals), by his order-in-appeal dated 11.7.85 held that the other four items were classifiable under T.I. 52. He accordingly set aside the order of the Deputy Collector in respect of those four items and allowed the appeal (sic).

5. Thereafter, the present applicants filed an appeal under Section 35B, Central Excises and Salt Act, against the order of the Collector (Appeals). They have prayed that that order may be set aside and consequential relief accorded to them. They have also filed the present stay application against the demand for Rs. 22,123.59, which stands confirmed by virtue of the order of the Collector (Appeals).

6. On the stay application coming up, a preliminary question arose whether the appeal out of which the stay application arises is at all maintainable in terms of Section 35B, Central Excises and Salt Act, governing appeals to this Tribunal. It was observed from the Bench that Section 35B of the act empowers the Tribunal to hear an appeal against an order passed by the Collector (Appeals) under Section 35A. Section 35A applies to an appeal to the Collector (Appeals) by any person aggrieved by a decision or order passed under the Act by a Central Excise Officer. In this case what came up before the Collector (Appeals) was not an appeal under Section 35A. It was an "application" under Section 35E, in pursuance of a direction by the Collector of Central Excise under Sub-section (2) ibid. Sub-section (4) ibid provides that "such application shall be heard by the Collector (Appeals)... as if such application were an appeal made against the decision or- order of the adjudicating authority and the provisions of this act regarding appeals including the provisions of Sub-section (4) of Section' 35-B shall, so far as may be, apply to such application. This provision clearly implies that the Collector (Appeals) shall hear and decide such application as if it were an appeal made to him under Section 35. The provisions of Section 35A would consequently apply to the hearing and disposal of such application. However, a doubt could arise whether the, provisions of Section 35E(4), quoted above, could be held to have effect beyond the stage of disposal of the application under Section 35E(2), in other words, whether Section 35E(4) could be construed as meaning that an order passed by the collector (Appea