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TMI Blog1993 (5) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... -1991. The issues involved in both these Appeals are similar and common arguments were advanced by the learned Advocate for the appellants Shri T. Kar and the learned J.D.R. Shri N.K. Mandal. Hence, we propose to dispose of these two Appeals by a common order. 2. In Appeal E-194/92, the case lodged against the appellant are that they manufactured unbranded biris falling under the erstwhile Tariff Item 11(3) ii of the 1st Schedule to the Central Excises and Salt Act, 1944 and removed the same during the years 1981-82, 1982-83 and 1983-84. It was the case of the department that the appellant and his two sons manufactured and removed 1,67,42,450 biris without observing the Central Excise formalities. A quantity of 2,26,000 biris manufactured ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red by limitation as it is beyond the period of five years. After personal hearing, the impugned order was passed. 3. In Appeal E-195/92, the case of the department was that the appellant manufactured unbranded biris falling under erstwhile Tariff Item II (3) ii of the 1st Schedule to the Central Excises and Salt Act, 1944 and removed the same to Ranigunge during the year 1983-84 without observing the Central Excise formalities. They removed 99,03,000 biris. Further, a quantity of 1,04,000 biris were also seized. Proceedings were initiated under C. No. V(4) ii-3-11 (15) 38-Seiz./85/5861 dated 23-4-1985 to recover duty on 99,03,000 biris which were clandestinely removed during the above period and the appellant was asked to explain why the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant had no opportunity to meet the charges raised by the Department, which were very vague. 5. After granting a personal hearing, the impugned order was passed directing the appellant Govind Prasad to pay duty on 23,74,000 biris which was removed by him during 1983-84. He also imposed a penalty of Rs. 2,000/- on him. 6. The learned Advocate Shri T. Kar appearing for the appellants in both these cases, made a common submission. The period involved in Appeal E-194/92 are 1981-82,1982-83 and 1983-84 and in Appeal E-195/92 the same is 1983-84. He pointed out that the show cause notice issued by the learned Additional Collector is beyond the period of five years. Therefore, the whole demand is time barred. He also pointed out that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces issued on 30-7-1990 in both the cases, it had been mentioned on the top about the adjudication case Nos. Therefore, he stated that they were not fresh show cause notices and the period of limitation commences from the date of the order passed by the Collector (Appeals) which is dated 19-9-1986. Therefore, the demands are not time barred. He also contended that the learned Additional Collector who had invoked the extended period of limitation in the de novo proceedings by issuing a show cause notice, had the jurisdiction to dispose of the matter. He also relied on other findings and started the same. He prayed for dismissal of the Appeals. 9. In view of the rival contentions, the important point which arises for our consideration in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en to adjudicate. There was no direction by him to issue any fresh show cause notice. Further, in the fresh show cause notices, in the statement of allegations, there is no whisper that these two notices were issued in terms of the orders passed by the Collector (Appeals). In fact, in terms of the order passed by the Collector (Appeals), the original adjudicating authority should have adjudicated the case. The very fact that the Additional Collector adjudicated the case by issuing a fresh show cause notice and in the absence of any allegation in the show cause notices that they were issued in terms of the remand order, the only conclusion is that these are the fresh show cause notices issued by the Additional Collector. This view has been t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be allowed on this limited legal ground- alone, without prejudice to other right of the Department, if any. We order accordingly. 7. Since we are allowing the appeal on the question of limitation, we do not propose to go into the merits of the case. The above observations clearly apply to the facts of this case. 12. For all practical purposes, in the eyes of law, the Notice dated 30-7-1993 was a fresh show cause notice. The same does not make any mention in the narrative portion with respect to the remand order. Moreover, in terms of the remand order it was the original authority who should adjudicate the same and there was no necessity of issuing a fresh show cause notice. The very fact that these fresh show cause notices were issu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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