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TMI Blog2000 (9) TMI 849X X X X Extracts X X X X X X X X Extracts X X X X ..... edure of Rule 173C of Central Excise Rules, 1944 for which penalty was imposed in the matter of Appeal No. R/5/99. Matter of both the appeals is similar one and therefore taken for decision together. 3. The Personal Hearing in both the appeals were fixed on 13-9-2000 and Shri V.M. Doiphode, Advocate appeared on behalf of the respondents. At the outset, he submitted that there are two appeals bearing Nos. R/5/99 and R/9/99 on similar issue and he would like to make presentation for both the cases together He also requested to decide both the appeals together. Shri Doiphode stated that in both the appeals he had already appeared before my predecessor and submitted some written submissions which may be taken on record. He also pointed out that these are appeals filed by the department in respect of the orders of the Assistant Commissioner whereby the demand against the respondents were dropped. Shri Doiphode, at the outset, invited my attention to the Form E.A. 2 in respect of both the appeals wherein against Sr. Nos. 3 and 4 it has been clearly written that while the adjudication orders are both dated 12-11-1997, the date on which the order under Section 35E(2) has been passed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... indicating as to whether the order passed by the authorities below is legal or otherwise. In the absence of such compliance as envisaged under Section 35B(2), the Supreme Court confirmed the decision in dismissing the appeal of the department as not maintainable. Shri Doiphode pointed out that the Apex Court had observed that as per the provisions under Section 35B(2) it is a clear pre-requisite to give direction to the Central Excise officer for filing an appeal. Shri Doiphode, therefore, argued that on this ground of limitation alone both the appeals would merit to be dismissed. 4. Shri Doiphode thereafter pointed out another lacunae, - the show cause notice was issued by the Superintendent and not the Assistant Commissioner who is the proper officer to issue such show cause notices under Rule 9(2) for period after six months in terms of Central Board of Excise Customs Circular No. 24/87, dated 12-5-1987 as amended by notification 26/95 dated 6-6-1995. 5. Coming to the merits of the case, Shri Doiphode first took the appeal No. R/5/99. He stated that in this case the respondents are excise registered unit and seven show cause notices were issued to them on the ground that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Department s appeal, it has nowhere been mentioned as to which price the department is seeking to compare with, if not the price of M/s. Sunil Plastics. Shri Doiphode pointed out that at least the lower authority, during the course of adjudicating proceedings, had brought to the respondents notice about the department s proposal to compare the price with the prices of M/s. Sunil Plastics, Dhulia. The Assistant Commissioner in his order has given detailed valid reasons for not relying upon the prices of M/s. Sunil Plastics, Dhulia. Shri Doiphode, therefore, argued that by demolishing this evidence of the price of M/s. Sunil Plastics, Dhulia, the Commissioner is only reaffirming the contention of the respondents that there is no evidence whatsoever in respect of the market enquiry with which the department wants to compare the price declared by the respondents. In respect of the ground at Sr. No. 1 regarding non-filing of price declaration, Shri Doiphode pointed out that on this issue penalty was imposed on them and this matter has been settled under KVSS, 1998 and they have paid Rs. 35,000/- in this regard. 7. Coming to the merits of the second appeal No. R/9/99, Shri Doiphod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Doiphode to the effect that the date of the order for filing the review on the note-sheet cannot be taken as the relevant date for the purpose of limitation under Section 35E(2), in the context of the Apex Court s judgment in the case of M.M. Rubber Co. - 1991 (55) E.L.T. 289 (S.C.). In the aforesaid landmark case, the Apex Court has clearly held that the limitation of one year from the date of decision or order will run from the date of signing of the decision or order by the concerned authority. While coming to this decision the Apex Court has explained the rationale behind it at various places of the judgment particularly in paragraph 12 thereof which I quote below :- 12. It may be seen, therefore, that, if an authority is authorised to exercise a power or do an act affecting the rights of parties, he shall exercise that power within the period of limitation prescribed thereof. The order or decision of such authority comes into force or becomes operative or becomes an effective order or decision on and from the date when it is signed by him. The date of such order or decision is the date on which the order or decision was passed or made: that is to say when he ceases to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ropriety of the order of the lower authority and, therefore, ordered in the file for filing the review. 11. Coming to the merits of the case, I find force in Shri Doiphode s argument when he invites my attention to the ground given at Sr. No. 6, and argues that this ground in fact supports his claim that the show cause notice did not disclose any evidence regarding the market enquiry, and that if the only evidence that is of M/s. Sunil Plastics, Dhulia which was relied upon by the Assistant Commissioner is taken out as requested by the appellants as ground No. 6, no other evidence remains for taking action against the respondents. I also agree with Shri Doiphode that in terms of Section 6b(i) of the Valuation Rules, the proper officer will have to make adjustments as is found to be reasonable taking into consideration all relevant factors including the difference, if any, in the material characteristics of the goods to be assessed and comparable goods. No evidence or details of the market enquiry which was the basis for confirming the allegation of under-valuation was indicated in the show cause notice. In the absence of such details there was no scope to apply Rule 6b(i) ibid. U ..... X X X X Extracts X X X X X X X X Extracts X X X X
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