G.R. Graphite Industries vs Collector of Central Excise

A. Pasayat, J.—Petitioners call in question legality of the order dated 7-11-1991 (vide Annexure - 6) passed by the Superintendent, Central Excise, Balangir Range (opposite party No. 2). According to them, the order was passed pursuant to the dictates of the Collector, Central Excise Orissa, Bhubaneswar. The aforesaid order vide Annexure-6 passed by the Superintendent, Central Excise, Balangir Range indicates that the graphite flakes and graphite powder are correctly classifiable under the sub-heading 2505.90 and Notification No. 23/55, dated 29-4-1955 is not applicable. On being moved by the petitioners, the Assistant Collector, Central Excise and Customs, Sambalpur by his order dated 19-6-1991 held that the graphite flakes and powders produced by the petitioners are excisable goods and classifiable under chapter heading 2505 and are eligible for the exemption under Notification No. 23/55-C.E., dated 29-4-1955, and further they are exempted from licensing control under Notification No. 111/78-C.E., dated 9-5-1978 as amended by Notification No. 11/88-C.E., dated 15-4-1988. With these conclusions the Asst. Collector did not impose penalty under Rules 173Q and 210 of the Central Excise Rules, 1944.

In view of the above conclusion of the Asst. Collector, it is submitted that the Superintendent of Central Excise (opp. party No. 2) has no jurisdiction to issue letter under Annexure-6. Similar plea was accepted by this Court in Laxminarayan Makhanlal & Co. and Anr. v. Collector, Central Excise, Orissa and Ors. (OJC No. 6455 of 1991 disposed of on 24-4-1992). No distinguishing feature is brought to our notice. Accordingly, we quash Annexure - 6, and allow the writ application. We make no order as to costs.