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TMI Blog2008 (4) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... of Central Excise, Division-IV, Ahmedabad, approving price list No.181/83-84 dated 22.06.1983 by adding 30%. However, after hearing the petitioner-appellant the appellate authority came to the conclusion that one M/s. Hindustan Dorr Oliver Company Limited (the buyer company) was "closely related" with the petitioner-Company; that the relationship between the two is so interrelated that the petitioner-appellant and the buyer company have direct interest in the business of each other. Therefore, they would be covered by Proviso (ii) of Section 4(1)(a) of the Central Excise and Salt Act, 1944 (the Act). Hence, the appellate authority set aside the order made by the adjudicating authority and held that the price charged by the buyer company to the customers of the buyer company shall be treated as the assessable value of the goods manufactured and sold by the petitioner-appellant and the petitioner-appellant was to be charged excise duty accordingly. 3. On behalf of the petitioner-appellant it is submitted that the entire order made by the appellate authority is without jurisdiction as the appellate authority has travelled beyond the subject matter of the appeal by holding that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing decisions: (i) India House v. Kishan N. Lalwani, (2003) 9 SCC 393, to submit that once limitation was prescribed it was not open to pass any order beyond the period of limitation; (ii) Nasiruddin Ors. v. Sita Ram Agarwal, (2003) 2 SCC 577, to submit that once the language of the statute was unambiguous and plain, recourse could not be had to the principles of interpretation other than the literal rule. (iii) Singh Enterprises v. Commissioner of Central Excise, Jamshedpur Ors. 2008 (221) E.L.T. 163 (S.C.) = 2008 (3) SCC 70 was referred to in context of the period of limitation. 6. On behalf of the respondent-department Mr. H.C. Buch, learned Additional Standing Counsel for the Central Government, submitted that Second Proviso under sub-section (3) of Section 35A of the Act had to be read so as to make the provisions workable. That the petitioner-appellant had already been issued a show cause notice by the adjudicating authority and hence, it was not as if the order had been made by the appellate authority without any notice to the petitioner-Company. Alternatively, it was pleaded that if it was required that it should be the appellate authority who shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision or order appealed against, or may refer the case back to the adjudicating authority with such directions as he may think fit for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary: Provided that an order enhancing any penalty or fine in lieu of confiscation or confiscating goods of greater value or reducing the amount of refund shall not be passed unless the appellant has been given a reasonable opportunity of showing cause against the proposed order: Provided further that where the Collector (Appeals) is of opinion that any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, no order requiring the appellant to pay any duty not levied or paid, short-levied or short-paid or erroneously refunded shall be passed unless the appellant is given notice within the time-limit specified in section 11A to show cause against the proposed order. (4) The order of the Collector (Appeals) disposing of the appeal shall be in writing and shall state the points for determination, the decision thereon and the reasons for the decision. (5) On the disposal of the appeal, the Collector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rded an opinion there was no question of the appellate authority issuing any show cause notice. The show cause notice issued by the adjudicating authority, therefore, cannot be equated with the show cause notice required by the provisions of the Second Proviso to sub-section (3) of Section 35A of the Act. 9. There is one more aspect of the matter. Legislature has used the word "appellant" and not assessee. The position in law is well settled that an appellant could be a person aggrieved by an order made by the adjudicating authority and such an appellant need not necessarily be only an assessee against whom an adjudication order has been made. [Reference: Lalbhai Trading Company through B.K. Bhatt Ors. v. Union of India Ors., 2006(1) G.L.R. 497.] Therefore, also, the show cause notice issued by the adjudicating authority cannot take place of the show cause notice to be issued by the appellate authority. 10. After recording an opinion the appellate authority is required to issue a notice to the appellant to show cause against the proposed order. The said words, "the proposed order" indicate the legislative intention, namely, the recording of opinion is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n existence of sufficient cause being shown is different from extending period of limitation which is otherwise circumscribed by the statute. In this context one may usefully refer to the succinct observations made by the Apex Court in the case of Parashuram Pottery Works Co. Ltd. v. Income-tax Officer, Circle-I, Ward A, Rajkot, [1977] 106 ITR 1 (S.C.) at Page 10: "It has been said that the taxes are the price that we pay for civilization. If so, it is essential that those who are entrusted with the task of calculating and realising that price should familiarise themselves with the relevant provisions and become well-versed with the law on the subject. Any remissness on their part can only be at the cost of the national exchequer and must necessarily result in loss of revenue. At the same time, we have to bear in mind that the policy of law is that there must be a point of finality in all legal proceedings, that stale issues should not be reactivated beyond a particular stage and that lapse of time must induce repose in and set at rest judicial and quasi-judicial controversies as it must in other spheres of human activity. ....." 13. In the circumstances, it would not be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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