1964 (11) TMI 119 - HC - Central Excise

Summary

Issues Involved:
1. Jurisdiction of the Superintendent of Central Excise to issue a fresh notice after the appellate order.
2. Legality of the fresh notice issued under Rule 9(2) and Rule 226 of the Central Excise Rules, 1944.
3. Finality of the appellate order under Section 35 of the Central Excise and Salt Act, 1944.
4. Validity of the departmental communication and its effect on the appellate order.

Detailed Analysis:

1. Jurisdiction of the Superintendent of Central Excise to Issue a Fresh Notice:
The petitioner challenged the fresh notice dated January 13, 1961, issued by the Superintendent of Central Excise on the grounds of jurisdiction. The petitioner argued that the appellate order passed on November 2, 1960, had become final, and in the absence of any remand order, the Superintendent could not legally issue a fresh notice on the same grounds. The respondents contended that the Deputy Collector had directed a de novo adjudication because Rule 9 was not included in the original show cause notice, and the petitioner was not given an opportunity to be heard on that point.

2. Legality of the Fresh Notice Issued Under Rule 9(2) and Rule 226:
The fresh notice was issued on the grounds of variations between the R.G. 1 records and the folding reports, alleging contravention of Rule 9(2) and Rule 226. The petitioner argued that this was without jurisdiction as the appellate order had already quashed the original demand and penalty. The respondents argued that the fresh notice was legal and competent due to the remand order, which was a part of the appellate order.

3. Finality of the Appellate Order Under Section 35:
Section 35(2) of the Central Excise and Salt Act, 1944, provides that every order passed in appeal shall be final, subject to the power of revision conferred by Section 36. The petitioner argued that no revision application was filed, making the appellate order final. The respondents contended that the appellate order included a direction for de novo adjudication, which was communicated to the Superintendent.

4. Validity of the Departmental Communication and Its Effect on the Appellate Order:
The appellate authority's order dated November 2, 1960, did not explicitly mention a remand for de novo adjudication. However, a post-script dated November 5, 1960, directed the Superintendent to adjudicate the case de novo. The petitioner argued that this post-script was a mere departmental communication and not part of the judicial order. The respondents claimed it was a composite order, and the de novo adjudication direction was valid.

Conclusion:
The court held that the appellate order dated November 2, 1960, was final and did not include any remand for de novo adjudication. The post-script dated November 5, 1960, was considered a departmental communication and not part of the judicial order. Therefore, the Superintendent of Central Excise had no jurisdiction to issue the fresh notice dated January 13, 1961. The court quashed the impugned notice and prohibited any proceedings in pursuance thereof. The petition was allowed, and the rule made absolute with costs.