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TMI Blog2002 (4) TMI 142X X X X Extracts X X X X X X X X Extracts X X X X ..... djudicating authority has erred in proceeding with the case of two Chartered Accountant firms who had obtained an order of stay of all proceedings against them from the Bombay High Court under order dated 4-7-94 and 20-6-97. 3.Learned Counsel appearing on behalf of the noticee took a preliminary objection regarding maintainability of the appeals filed by the Revenue. It is contended that the appeal at the instance of Commissioner of Central Excise, Delhi is not maintainable for the reason that none of the factories are within his jurisdiction. According to the learned Counsel, Commissioner, Delhi was authorised only to adjudicate the proceedings and once the adjudication proceedings are over he becomes functus officio and, therefore, he cannot be treated as an adjudicating authority contemplated under sub-section (1) of Section 35E. In support of the above contention he relied on a decision of West Regional Bench of this Tribunal in E/1845-V/1999-Bom. (Order No. CI/446-53/WZB/2002, dated 7-2-2002 [2002 (143) E.L.T. 112 (T)]. 4.He also contended that the appeal filed is beyond the period of limitation. According to the learned Counsel the appeal should have been filed within three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order of the adjudicating authority. Wherein pursuance of an order(4) under sub-section (1) or sub-section (2) the adjudicating authority or the authorised officer makes an application to the Appellate Tribunal or the Commissioner (Appeals) within a period of three months from the date of communication of the order under sub-section (1) or sub-section (2) to the adjudicating authority such application shall be heard by the Appellate Tribunal or the Commissioner (Appeals), as the case may be, as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals, including the provisions of sub-section (4) of Section 35B shall, so far as may be, apply to such application." 6.A plain reading of sub-section (1) would show that direction that has to be given by the Board is to the Commissioner who, as an adjudicating authority, has passed any decision or order under the Central Excise Act, which has to be challenged before the Tribunal according to the Board. The contention raised by the respondent is that the Commissioner, Delhi is not the normal adjudicating authority within whose jurisdiction the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s within whose jurisdiction the factories are situate will have to file separate appeals. We do not find that the language of sub-section (1) of Section 35E would permit us to give such an interpretation to the provisions contained therein. 8.On the question of limitation also we are not inclined to accept the submission made on behalf of the respondent. Sub-section (1) of Section 35E provides that the Board shall by order direct the Commissioner to apply to the Appellate Tribunal in the matter of challenge of the order passed by the adjudicating authority. Sub-section (3) provides that no such order shall be made after the expiry of one year from the date of the decision or order of the adjudicating authority. Sub-section (4) provides that once order is thus passed the appeal has to be filed within a period of three months from the date of communication of the order (emphasis supplied). Thus, it is clear from the language of the three sub-sections that legislature has taken care to provide for period of limitation for different stages of the proceedings. The contention raised by the learned Counsel for the respondent is that the provisions contained under sub-section (1) regardin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n addressed by the learned Counsel appearing on behalf of the Revenue in the adjudication proceedings. It is not disputed that such material were made available to all the noticees by the adjudicating authority calling for their objection, if any. During hearing on 5-2-96 the adjudicating authority made it clear that it will not pass any piecemeal order on the admissibility of the additional evidence produced but it will consider the matter after hearing the arguments of both sides at the time of final adjudication proceedings and will pass an order along with adjudication order. This is evidenced by communication dated 31-12-96 addressed by the adjudicating authority to all parties concerned. In the meanwhile, two Chartered Accountant firms who were noticees filed Writ Petition before the Hon'ble High Court at Bombay challenging the proceedings initiated against them for the proposed imposition of penalty. Under order dated 4-7-94 and 20-6-97 Bombay High Court stayed proceedings against them. Similarly Tirupati Cigarettes Ltd. filed writ petition before the Allahabad High Court challenging the admissibility of additional evidence and obtained an order of stay dated 1-4-97 and 21-4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court of Allahabad. In the adjudication proceedings the Commissioner also will examine the question of admissibility of additional evidence. 14.Order-in-Original No. 1/98, dated 30-9-98 challenged in Appeal Nos. 3296/99 by Marketing & Exchange (India) Pvt. Ltd. is an ex parte order. Even though there is no reference to the additional evidence adduced by the Revenue during the adjudication proceedings in this order itself, it is seen that this noticee was also served with additional evidence and opportunity was given to submit its objection. Therefore we set aside Order-in-Original No. 1/98, dated 30-9-98 and remand the matter for fresh consideration in the light of the direction given above. 15.Appeals filed by the noticees are also disposed of by way of remand as mentioned above. We make it clear that we are not expressing any view on the merits of the contention raised by both sides. Duty allegedly evaded during the period was Rs. 11,26,36,525. Therefore, there will be a direction to the adjudicating authority to pass final order as directed above within a period of six months from the date of receipt of a copy of this order. All parties are to cooperate in the proceedings so ..... X X X X Extracts X X X X X X X X Extracts X X X X
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