1990 (1) TMI 226 - AT - Central Excise

Summary

Issues:
1. Review of refund order and withdrawal of demand order under Section 35A of the Central Excises and Salt Act, 1944.
2. Jurisdiction of the Board to review proceedings passed by the Government of India.
3. Consequential relief granted by subordinate authority in pursuance of Government's order under Section 36 of the Act.
4. Interpretation of protest for levy purposes and eligibility for exemption under Notification for small scale industries.

Analysis:

1. The appeals were filed as Revision applications before the Government of India under Section 36 of the Act, which were transferred to the Tribunal as appeals under Section 35P(2) of the Act. The background of the cases involved revision applications filed against Collector's orders, resulting in a refund and withdrawal of demands. The Central Board of Excise and Customs reviewed the proceedings, leading to a dispute over handling charges and quantification of the refund amount.

2. The appellant argued that once a matter regarding handling charges had been settled by the Government of India, it cannot be reopened by the Board under Section 35A for de novo proceedings. The appellant contended that the Board's order for de novo quantification was not within its jurisdiction, as the Government's decision had already settled the matter. The Tribunal agreed with the appellant's argument, stating that the Board cannot review Government proceedings and consequential relief granted based on the Government's order cannot be reopened by the Board.

3. The Tribunal emphasized that the Board cannot assume jurisdiction to review orders passed by the Government of India or provide fresh directions on quantification when the Government's order did not determine the refund amount precisely. The Tribunal held that the Board's actions amounted to reviewing the Government's order under Section 36 of the Act, which was beyond its authority. Consequently, the Tribunal set aside the impugned orders and allowed the appeals in favor of the appellants.

4. In a separate judgment, another Member of the Tribunal disagreed with the proposition that a protest for one purpose extends to all purposes regarding levy and exemption claims under Notifications. However, the judgment clarified that the appellants, a small-scale industry, protested against the value adopted by the Central Excise Department, impacting their eligibility for small scale industry exemptions. The judgment emphasized that the appeals should be allowed based on the specific circumstances of the case, without relying on the broader interpretation of protests for all purposes.