2002 (4) TMI 142 - AT - Central Excise

Summary

Issues Involved:
1. Maintainability of the appeals filed by the Revenue.
2. Limitation period for filing the appeal.
3. Consideration of additional evidence by the adjudicating authority.
4. Proceedings against Chartered Accountant firms despite stay orders.

Summary:

1. Maintainability of the Appeals Filed by the Revenue:
The noticees contended that the appeals by the Commissioner of Central Excise, Delhi were not maintainable as the factories were outside his jurisdiction. They argued that once adjudication proceedings are over, the Commissioner becomes functus officio and cannot be treated as an adjudicating authority u/s 35E(1). The Tribunal rejected this contention, stating that the Commissioner who passed the decision or order under the Act as an adjudicating authority must be directed to move to the Appellate Tribunal. The Tribunal emphasized that the Commissioner of Central Excise, Delhi was vested with powers throughout India for investigation and adjudication by the Central Board of Excise and Customs, and thus, the appeals were maintainable.

2. Limitation Period for Filing the Appeal:
The noticees argued that the appeal was barred by limitation as it was filed beyond the prescribed period. They claimed that the review order u/s 35E(1) must be communicated within one year from the date of the impugned order, and the appeal must be filed within three months thereafter. The Tribunal disagreed, interpreting that sub-section (4) of Section 35E specifically provides for filing an appeal within three months from the date of communication of the order. Therefore, the appeals were not barred by limitation.

3. Consideration of Additional Evidence by the Adjudicating Authority:
The Revenue contended that the Commissioner erred by not considering additional evidence presented during adjudication. The Tribunal noted that the adjudicating authority had initially decided to consider the admissibility of additional evidence along with the final order. However, due to a stay order from the Allahabad High Court, the Commissioner did not consider the additional evidence. The Tribunal found this to be a grievous error, as the stay order was limited to proceedings against Tirupati Cigarette Ltd. and did not apply to other noticees. The Tribunal set aside the impugned order and remanded the matter for fresh consideration, including the admissibility of additional evidence.

4. Proceedings Against Chartered Accountant Firms Despite Stay Orders:
The Tribunal observed that the Commissioner continued proceedings against two Chartered Accountant firms despite interim orders from the Bombay High Court staying all further adjudication proceedings against them. The Tribunal held that the impugned order was bad for this reason as well and directed the adjudicating authority to delink the cases of the Chartered Accountants and Tirupati Cigarette Ltd. from the fresh adjudication proceedings.

Conclusion:
The Tribunal set aside the impugned orders dated 19-5-99 and 30-9-98 and remanded the matters for fresh consideration by the Commissioner. The adjudicating authority was directed to proceed with the adjudication after delinking the cases with pending writ petitions and to examine the admissibility of additional evidence. The Tribunal emphasized the need for cooperation from all parties to ensure timely adjudication within six months. Appeals were allowed by way of remand.