G. Sankaran, Member (T)

1. The facts of the case, briefly stated, are that the Assistant Collector of Central Excise, Rourkela, vide his letter dated 13-10-1983, addressed to the appellants, intimated them that according to Notification No. 118/75, as amended by Notification No. 105/82 dated 28-2-1982, goods falling under Tariff Item No, 68 C.E.T. could be removed to another factory of the same manufacturer under Chapter-X Procedure of the Central Excise Rules for further manufacture. He also said in the letter that he was directed to inform the appellants that their application for issue of L-6 Licence for obtaining rejected reel core as raw material for making pulp could not be acceded to.

2. M/s. Orient Paper Mills pursued the matter in appeal. Vide Order-in-Appeal No. 1/OR/84 dated 4-1-1984, the Collector of Central Excise (Appeals), Calcutta allowed the appeal because the appellants, according to him, were entitled to the aforesaid exemption notification. The Collector (Appeals) ordered that L-6 licence should be granted to the appellants and that they should be allowed to obtain reel core rejects without payment of duty in terms of the said notification.

3. The Collector of Central Excise, Bhubaneswar has also passed an order bearing No. IV(2) 53.C.E./AT/84 dated 24-2-1984 in the same matter. According to this order, the Assistant Collector in his letter dated 13-10-1983 (referred to earlier) was merely communicating the order of the Collector of Central Excise, Bhubaneswar. It was not the order of the Assistant Collector himself. In his order, the Collector, Bhubaneswar, stated that the order passed by the Collector of Central Excise (Appeals), Calcutta (No. 1/OR/84 dated 4-1-1984) was beyond jurisdiction on the grounds specified in the Collector's order. In brief, these grounds were that the decision to give or not to give a licence in terms of Central Excise Rule 192 read with Notification No. 118/75 was to be taken by the Collector and the Collector (Appeals) had no jurisdiction in the matter. Secondly, the Assistant Collector's letter only conveyed the Collector's order though it was not stated so in the letter. Accordingly, the Collector, Bhubaneswar, reiterated his earlier order (conveyed by the Assistant Collector) rejecting the application for L-6 licence.

4. Shri Kapoor, Consultant, appearing on behalf of the appellants, submitted that the Collector, Bhubaneswar, had passed his order dated 24-2-1984 without giving to the appellants a show cause notice or an opportunity of being heard. The Collector was not competent to adjudicate the matter once the Collector (Appeals) had disposed of the appeal before him against the Assistant Collector's order. If the Collector was aggrieved with the order of the Collector (Appeals), the proper course for him would have been to file an appeal before the Tribunal.

5. Shri Lakshmi Kumaran, appearing on behalf of the Respondent, fairly stated that it was a fact that the Collector, Bhubaneswar, had not given a show cause notice to the appellants. The Collector's order was, therefore, liable to be set aside for de novo adjudication. But when he was asked by the Bench as to why the matter should be remanded to the Collector when the Collector could not have sat in judgment over the order of the Collector (Appeals), Shri Lakshmi Kumaran, again, fairly stated that he had no answer.

6. We have considered the records of the case and the submissions before us. Section 35-B(2) of the Central Excises and Salt Act, 1944 provides that the Collector of Central Excise may, if he is of opinion that an order passed by the Appellate Collector of Central Excise under Section 35, as it stood immediately before the appointed date, or the Collector (Appeals) under Section 35-A, is not legal or proper, direct any Central Excise Officer authorised by him in this behalf to appeal on his behalf to the Appellate Tribunal against such order. If the Collector, Bhubaneswar, considered that the order of the C