1979 (7) TMI 95 - CGOVT - Central Excise

Issues Involved:
1. Reasonable opportunity for explanation before valuation order.
2. Indication of appellate remedies in valuation order.
3. Timeliness of appeal filing.
4. Filing of revision application under Section 35A.
5. Erroneous presumption by the Board regarding the review application.
6. Remand for reconsideration on merits.
7. Interpretation and application of Section 35A.
8. Authority for remand.

Detailed Analysis:

1. Reasonable Opportunity for Explanation Before Valuation Order:
The petitioner-firm argued that the Assistant Collector of Central Excise, Asansol, issued the valuation order on 16-6-1976 without providing a reasonable opportunity for the firm to explain the basis for the valuation of their product as per Section 4 of the Act. This lack of opportunity was a significant point of contention.

2. Indication of Appellate Remedies in Valuation Order:
The valuation order and the covering letter did not indicate that an appeal could be made to the Appellate Collector. This omission led the petitioner-firm to make a further representation on 21-7-1976, instead of filing an appeal, which they would have done if they had been informed of this option.

3. Timeliness of Appeal Filing:
The petitioner-firm received a communication from the Assistant Collector on 18-10-1976, stating that he could not reconsider the case. By this time, the period for filing an appeal had expired, precluding the petitioner-firm from appealing the order.

4. Filing of Revision Application Under Section 35A:
In response to the Assistant Collector's communication, the petitioner-firm filed a revision application under Section 35A of the Act on 15-12-1976. A copy of this application, bearing a dated rubber stamp of the Board's office, was produced as evidence.

5. Erroneous Presumption by the Board Regarding the Review Application:
The Board erroneously treated a stay application filed by the petitioner-firm on 27-4-1977 as the review application under Section 35A, leading to the conclusion that there was a delay in filing the review application. The petitioner-firm argued that even the stay application was filed within the one-year limit prescribed by the second proviso to Section 35A.

6. Remand for Reconsideration on Merits:
The learned counsel for the petitioner-firm argued that the case should be remanded for reconsideration on merits. The Government agreed, noting that the Board should have exercised its powers appropriately and that the grounds for not entertaining the revision application were not sustainable.

7. Interpretation and Application of Section 35A:
The petitioner-firm's counsel argued that the Board's refusal to entertain the application under Section 35A was contrary to the express provisions of the section and to analogous decisions by the Madras and Calcutta High Courts and the Supreme Court. The Government agreed, citing the Supreme Court decision in the Bombay Ammonia case, which clarified that suo motu powers could be exercised at the instance of an assessee.

8. Authority for Remand:
The Government decided that the case should be remanded to the Collector of Central Excise, West Bengal, for reconsideration. This decision was based on the amendment to the Act, which vested the powers of revision in the Collector of Central Excise for orders passed by the Assistant Collector.

Conclusion:
The Government ordered that the case be remanded to the Collector of Central Excise, West Bengal, with the direction to consider the petitioner-firm's application dated 15-12-1976 on its merits and in conformity with the provisions of Section 35A of the Act.

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