9911796707
TMI Blog1986 (9) TMI 85X X X X Extracts X X X X X X X X Extracts X X X X ..... nt to this detection of shortages, the first respondent issued a show cause notice to the petitioner company on 25-5-1983 calling upon them to show cause as to why duty on shortages in pistons, rings, gudgeon pins totalling about Rs. 2,16,681.94 should not be demanded under Rule 223-A of the Central Excise Rules, 1944 and further calling upon the petitioner as to why a penalty should not be imposed on the petitioner under Rules 223-A and 226 of the Central Excise Rules. The petitioner filed a reply on 25-5-1983 stating inter alia that the demand made by the first respondent was carried under the provisions of Section 11-A of the Central Excise Act. It was further contended that the discrepancies noticed were only due to wrong entries posted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of the second respondent mentioned above. Accordingly, appeals were preferred. The petitioner herein filed a Memorandum of Cross-obiections before the 4th respondent, inter alia, contending that the appeal before the Tribunal was not maintainable in view of the amendments to the Central Excises and Salt Act by the Finance Act, 1984. It was stated that any appeal in respect of loss of goods or shortage of goods in the factory or in transit will have to be filed before the Government of India and not before the Tribunal. On merits it was also urged that the proceedings initiated by the Department against the petitioner were time barred in view of Section 11-A of the Act. By the impugned order of the Tribunal it was held:- "On a proper ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. 7. Learned Counsel for the petitioner urges that in view of Proviso (a) to Section 35(b) of the Central Excises and Salt Act, 1944 (hereinafter referred to as the Act), no appeal would lie to the Tribunal in the case of loss. Once that finding is arrived at, it is not open to the Tribunal to transfer, in the interest of fair play and justice. There is a total lack of jurisdiction in this case. The Tribunal cannot order a transfer to the file of the Government of India stating that the appeals were filed in time before the Tribunal and it was proceeded in a wrong forum and therefore in the interests of justice it could transfer so. The question is whether the Tribunal has jurisdiction or not? Once it was found that the appeals before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bmission, about the lack of jurisdiction on the part of the Tribunal, whether it is a case of loss of goods falling under Proviso (a) to Section 35(b) of the Act. 10. In order to appreciate the respective contentions, let me extract the relevant portions of the order of the Tribunal, against which alone the petitioner is aggrieved and has come up to this court. I have already extracted as to how the Tribunal has found that on a proper interpretation of the expression 'loss of goods' the proper forum would be the Central Government in terms of Section 35-EE of the Act. Therefore, according to the Tribunal, the Department has by mistake filed the appeals before the Tribunal, of course within the time limit and the appeals have been inadvert ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases: - The Tribunal may make such orders or give such directions as may be necessary or expedient to give effect or in relation to its orders or to prevent abuse of its process or to secure the ends of justice." To my mind this obviously means, in such cases where the Tribunal has jurisdiction to pass orders it may pass corollary orders to see that the orders are rendered effective. It may also see prevention of abuse of its process. It may also see that the ends of justice are secured. But, the ends of justice is not a panacea for all laches for the Tribunal to invest itself with the power of transfer, on an assumption that it is warranted in the interest of fair play and justice. 11. Now look at the position of the petitioner. A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... states that the Tribunal itself had entertained a doubt as to the lack of jurisdiction on the part of the Tribunal because it reads:- "In this connection, we should also like to observe that the question relating to jurisdiction has also been a debatable point and the question as to whether shortages found out during stock taking in the present case would be covered by Clause (a) of proviso to Section 35-B of the Act is itself a matter for interpretation, not free from doubt." Therefore, according to him, the impugned order may be set aside and the case be remitted to the Tribunal for fresh consideration on the point of jurisdiction. I find there are three great hurdles in the way of the learned Counsel for the Department for succeeding ..... X X X X Extracts X X X X X X X X Extracts X X X X
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