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TMI Blog2002 (2) TMI 209X X X X Extracts X X X X X X X X Extracts X X X X ..... y unit were taken over by the private limited company. The manufacture and supply of CTVs. and audio products were continued as earlier. 2.There was a substantial difference between the manufacturer's price and the market price of the CTVs and audio systems. This lead to investigations. The investigations showed that the manufacturer was getting as cost and profit the sum of Rs. 250/- per set. The key components were supplied by M/s. BIL. Those components which were purchased by M/s. JRE was also heavily undervalued. Statements of concerned persons were recorded. The Agreements were studied and which showed that M/s. BIL exercised absolute control over M/s. JRE. Similar findings were made even when M/s. JRE was converted into M/s. JRCEPL. The prima facie conclusion drawn was that the proprietary concern and the private limited company were dummies of M/s. BIL and therefore the prices at which M/s. BIL were selling the final goods should be the base for assessment in the hands of the manufacturer. In this belief the show cause notice was issued to M/s. BIL, Mr. J.R. Mulchandani, Chief Executive, Mr. Kabir Mulchandani, M.D. and S.C. Gupta and Jaydeep Anand, Directors of M/s. BIL; M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n these submissions before proceeding with the appeals inasmuch as the finding of the Tribunal on the basic issue raised by him would make an impact and a bearing on the hearing of the appeals. 12.The argument made by him was twofold. His first submission was that the directions made by the CBEC to the Commissioner of Central Excise, Meerut-II were not in terms of provisions of Section 35F(1) of the Act. Citing the language of the provision he says that the very Commissioner who had passed the order was alone competent to file the applications. The Adjudicating Officer in the present case was the Commissioner of Central Excise, Vadodara. The CBEC should have directed him to file the applications. The directions given to the Commissioner of Central Excise, Meerut-Il were not in terms of the said provision. This order being defective the applications and the pursuant Revenue Appeals would become void. In support of his submissions he cited a number of Tribunal Judgments and also a Supreme Court Judgment in the case of M.M. Rubber Co. reported in 1991 (55) E.L.T. 289 (S.C.). He claimed if the Tribunal rules in his favour the appeals of the Revenue would be liable for dismissal witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... up the first point raised by the Shri Lakshmikumaran. 17.Section 35E of the Act empowers the Board or a Commissioner of the Central Excise to call for and to examine an adjudication order. If it leads to the belief that the order is not legal or proper then the Board or the Commissioner as the case may be, may direct the adjudicating authority to make an application to the appropriate appellate authority; on the lines of the points made by the revisionary authority. Such applications are to be treated as appeals by the appropriate appellate authorities. The relevant provisions of said Section 35E at the material time read as under :- (1) The Board may, of its own motion, call for and examine"35E. the record of any proceeding in which a Commissioner of Central Excise as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such Commissioner to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the Board in its order. The Commissioner of(2) Central Excise may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder. It must be noted here that the grievance made by the appellants in these cases was on the level of authorities and not on the ground that the officer who had made the application was different from the officer who had passed the adjudication order. Sub-section (1) of the said Section speaks only of one level i.e. Commissioner. 22.We have perused para 6 of the Supreme Court judgment in continuation with paras 4 and 5. 23.Section 35 and 35B which relate to appeals to the Commissioner (Appeals) and to the Appellate Tribunal respectively, specify that for an appeal to be filed the Appellant must be 'any person aggrieved'. In this situation the adjudicating authority making an application under Section 35E cannot be termed as 'a person aggrieved'. Sub-section 4 of this Section require the Appellate Authority to hear the applications as if they were appeals. The Supreme Court obviously was reconciling a situation which was apparently at odds i.e. an adjudicating officer being put in a situation of being aggrieved by his own order and appealing against it instead of being bound by it. It would appear that Shri Lakshmikumaran, learned Counsel is seeking to extract more from these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Collector who passed the order. It can also be that the adjudication order is passed by a Collector holding additional charge and the application is made by Collector holding his charge after his resumption/leave. These situations are real and arise at all times. It cannot be anybody's case that the said section before its amendment would render null any application made by the other Commissioner in these situations. The situation as is existed in the present case is not so different from the situations described above. 28.In terms of Order made by the Board the function of adjudication in specific cases was transferred from Commissioner of Central Excise, Meerut to Commissioner of Central Excise, Vadodara. Such limited transfer did not take away the capability of the Commissioner of Central Excise, Meerut as an 'adjudicating authority'. The definition of the 'adjudicating authority' under Section 2(a) of the Act merely specifies the competence to pass an order. That competence is amplified and illustrated in Section 33 of the Act. When these two provisions are read together it would be clear that every officer of Central Excise of and above the rank of a Superintendent would be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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