1983 (12) TMI 276 - AT - Central Excise

Summary

Issues:
Validity of appeal filed without compliance with Section 35E of the Central Excises and Salt Act, 1944.

Detailed Analysis:

1. Preliminary Objection Raised by Respondent:
- The respondent raised a preliminary objection that the appeal filed by the appellant on 9-5-1983 was not valid as it did not comply with the provisions of Section 35E of the Act.
- The argument was based on the fact that the Central Board of Excise & Customs had not passed an order as required by Section 35E(1) before the appeal was filed, rendering it incompetent.

2. Appellant's Response and Explanation:
- The appellant had filed another appeal on 3-11-1983 regarding the same order and matter, indicating caution.
- The appellant's representative argued that a letter dated 8-4-1983 from the Government of India, though lacking specificity, could be considered a proper direction under Section 35E.
- It was contended that the provisions of Section 35E were directory and not mandatory, and there was substantial compliance despite the procedural lapses.

3. Tribunal's Decision and Reasoning:
- The Tribunal disagreed with the appellant's contention that mere mention of an order under Section 35E(1) was sufficient, emphasizing the mandatory nature of compliance with the section.
- It was clarified that Section 35E required a conscious decision of the Board, and an appeal under Section 35E(4) was competent only when filed in pursuance of an order passed under Section 35E(1).
- The Tribunal found that the memo dated April 1983 from the Government of India was not an order passed by the Board as required, making the appeal filed on 9-5-1983 incompetent and non-maintainable.

4. Additional Observations:
- The filing of another appeal by the appellant on 3-11-1983 regarding the same matter indicated doubts about the initial appeal's maintainability.
- The Tribunal noted that declaring the initial appeal as incompetent would not prejudice the appellant, as a new appeal had been filed within the time limit.

5. Final Decision and Directions:
- The Tribunal held that the appeal dated 9-5-1983 was incompetent due to non-compliance with Section 35E provisions and was filed as infrectuous.
- The subsequent appeal filed on 3-11-1983 was considered newly filed and would be assigned a new number for further proceedings.
- The matter was scheduled for an early hearing based on the request of both parties due to the significant amount of money involved.

This detailed analysis of the judgment highlights the procedural and substantive issues surrounding the appeal's validity and the Tribunal's decision regarding compliance with Section 35E of the Act.