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TMI Blog1979 (7) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excise, Ranigunj, with a note to contact the petitioner-firm and take necessary steps for immediate implementation of what the Asst. Collector described as an "order". Neither the covering letter nor the enclosed "valuation order" gave an indication that it was an appealable order and the authority to whom the petitioner was to file the appeal in case they felt aggrieved by the `valuation order' passed. On receipt of the aforesaid communication and the valuation order, the petitioner-firm made a representation in their letter, dated 21-7-1976, to the Assistant Collector, Asansol, for re-consideration of the matter. The Asst. Collector, however, by his letter, dated 18-10-1976 expressed his inability to "deal with the case afresh" as his order, dated 16-6-1976, was issued after careful consideration. In this letter there is a reference to a discussion which the Asst. Collector had with the representatives of the petitioner-firm on 13-9-1976, but it has not been made clear as to why even at that stage the petitioner-firm was not directed to file immediately an appeal to the competent authority. 3. On receiving the communication dated 18-10-1976 of the Asst. Collector of Centr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... personal hearing was also asked for by the petitioner-firm, the case was heard in New Delhi on 24-7-1979 when senior counsel Shri Sidarth Shankar Ray, assisted by Smt. Maya Ray and S/Shri K. Kumar and N. Mookherjee and accompanied by Shri B.D. Daga of the petitioner-firm appeared on behalf of the petitioner-firm and argued the case. The learned senior counsel forcefully refuted the facts as narrated in the Board's communication dated 6-4-1978. The more important point taken by him in this respect were the following :- (i) The Assistant Collector of Central Excise, Asansol had passed the so-called valuation order and communicated it in his letter, dated 16-6-1976, without affording the petitioner-firm a reasonable opportunity for explaining the basis on which valuation of their product has to be worked out in accordance with the provisions of section 4 of the Act. (ii) Neither the covering letter nor the valuation order passed by the Asst. Collector of Central Excise, Asansol indicated that an appeal against it lay to the Appellate Collector, as is customary whenever appealable orders are passed by the competent original adjudicating authority; hence the petitioners made furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmah Shell Oil Storage Distributing Co. Ltd. v. Commissioner for Commercial Taxes, Board of Revenue (C.T.), Madras Another in W.P. Nos. 2133 of 1966 and 1233 of 1967 (reported in 32 STC 1973 p. 207) - Madras Sales of Motor Spirit Taxation Act, 1939. (ii) The Paper Products Ltd. v. Assistant Commissioner, Commercial Taxes Others (reported in 32 STC 1973 p. 208) - Bengal Finance (Sales Tax) Act, 1941. (iii) Thvl. Bombay Ammonia Pvt. Ltd. v. State of Tamil Nadu in C.A. No. 1699 of 1973 (reported in A.I.R. 1976 SC 2136) - Tamil Nadu General Sales Tax Act, 1959. According to the counsel, the ratio decidendi of these judgments is that where power for revision is vested in a `public authority to call for and examine the records of the case relating to an order passed by a lower authority, such powers could be exercised either suo motu or on an application by the aggrieved party. The revisional powers under the above-cited acts being pari materia with the provisions of section 35A of the Act, the Board was duty bound to entertain and deal with the application of the petitioner-firm on merits in full exercise of the powers vested in it under section 35A. The Board not having don ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r, the Board should have exercised its powers in a manner appropriate to the case. Instead, the Board declined to exercise its powers of revision under section 35A of the Act on the ground that there has been laches on the part of the party which, on the facts as analysed and set out in para 3 above, is not sustainable. Those grounds are sufficient to accede to the prayer made by the petitioner-firm for remanding the case to the authority competent to exercise powers vested under section 35A of the Act. 8. Nevertheless, it is necessary to go into, and record a finding on, the legal grounds taken by the senior counsel, specially as the Board seems to have taken the view that the provisions of section 35A cannot be invoked as a substitute for an appeal. It is sufficient for the purpose of disposal of this issue to consider two sales-tax cases viz. that of Paper Products Ltd. decided by the Calcutta High Court [(1973) 32 STC 208] and the case under Tamil Nadu General Sales Tax Act of 1959 of Bombay Ammonia Private Ltd. decided by the Supreme Court [AIR 1976 SC 2136]. In the Paper Products Ltd. case, the Calcutta High Court had occasion to examine the powers of revision under secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner or the Appellate Tribunal, or of a revision in the High Court; or more than five years have expired after the passing of the order. (3) No order under this section adversely affecting a person shall be passed unless that person has had a reasonable opportunity of being heard. (4) In computing the period referred to in clause (c) of sub-section (2), the time during which the proceedings before the Deputy Commissioner remained stayed under the order of a Civil Court or other competent authority shall be excluded." It is seen that sub-section (1) of section 32 of the Tamil Nadu General Sales Tax Act, 1959 is pari materia with the operative part of section 35A of the Act, in fact, one could even say that the issue as to whether or not the powers of revision by the Board could be exercised also at the instance of the assessee, is placed beyond doubt by the use of the expression "of its own motion or otherwise". In so far as the conditions and restrictions subject to which the revisionary powers can be exercised are concerned, these two provisions are broadly comparable, inasmuch as the first proviso to section 35A of the Act corresponds to sub-section (3) of section 32 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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