9911796707
TMI Blog1991 (10) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... R) filed by the Respondents herein. 2. The facts relevant for the purpose are that Supdt. of Central Excise, Akola had issued a Show Cause Notice dated 5-9-1985 to the Respondents raising a demand for Rs. 8178.50 as differential duty payable for the period April 1984 to May 1985, and the Assistant Collector vide his order dated 26-11-1986 dropped the said Show Cause Notice. The Additional Collector of Central Excise, Nagpur, however, by issue of Memorandum dated 20-3-1989, issued a fresh show cause notice, raising the said demand over again, by mentioning that the said proceedings were pending before the Assistant Collector on 27-11-1985, when the Central Excises and Salt (Amendment) Act, 1984 came into force, and by virtue of Section 8 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmulated the questions for reference to the High Court as under:- (i) Whether the adjudication order dated 26-11-1986 passed by the Divisional Assistant Collector covering the pending proceedings under proviso to Sec. 11A is valid when by virtue of Section 8 of the Central Excises Salt (Amendment) Act, 1985 w.e.f. 27-12-1985 all proceedings under the proviso to Section 11A of Central Excises and Salt Act, 1944 pending before the Assistant Collector of Central Excise stood statutorily transferred to the Collector of Central Excise? (ii) Whether the said order of the Assistant Collector which is a nullity and is invalid in view of the said Section 8 of Central Excises and Salt (Amendment) Act, 1985 can be ignored and competent adjudicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cross Objection, and detailed submission opposing the prayer for reference made therein might be considered, and application be rejected. 6. Before appreciating the submissions made, and deciding whether any issue or question of law arises out of the order passed by the Bench, some resume of the position may be made. The Show Cause Notice dated 5-9-1985, issued by the Supdt., and adjudicated upon by the Assistant Collector raised a demand covering period April 84 to May 85, i.e. part of the demand was within the period of six months, and further, there was no allegation of suppression, fraud, mis-representation etc. Thus, though the part of demand traversed beyond the period of six months, the notice could not be read as the one issued vi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ad proceeded on the premises that the order of the Assistant Collector was beyond jurisdiction merely because the demand extended to the period beyond six months, but had overlooked the basic factual position that the notice and the adjudication conducted by the Assistant Collector did not contain any averment which ousted his jurisdiction. The entire premises on which, therefore, the Additional Collector based his conclusion was non-existent, and re-opening of the case by him was itself without jurisdiction. 8. Significantly, even while re-opening the case, while issuing the memorandum dated 20-3-1989, no allegation of fraud, suppression or mis- statement has been made. To reiterate, no such allegation existed in the earlier notice, date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is therefore rejected and the Cross Objection filed by the Respondents herein is also treated as disposed of. 13. [Assent per : R. Jayaraman, Member (T)]. - While agreeing with the conclusion arrived at by my learned brother Shri P.K. Desai that the Reference Application brought by the Revenue is to be rejected, I have viewed this from a slightly different angle. The main objection of the Department is that the Asst. Collector by adjudicating on a show cause notice, which has traversed beyond a period of six months (though no allegation of suppression is made in the show cause notice) and finally dropping the proceedings has acted without jurisdiction in view of the statutory provisions, transferring such proceedings from the Asst. Colle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... des for getting it reversed on the basis of illegality of the order. Admittedly, this course of action has not been done and the order is allowed to stand side by side with the new proceedings initiated by the Addl. Collector on the basis of a fresh show cause notice covering the same period on the same set of facts and circumstances. In my view, when there is a statutory remedy available under the Central Excises Act, for getting any illegal order passed by the Asst. Collector reversed by the competent authority, without resorting to this course of action, fresh proceedings on the same ground could not be initiated by another authority. The illegality can be on many grounds; one ground can be on account of lack of jurisdiction. Hence, if t ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
