1985 (9) TMI 167 - AT - Central Excise

Summary

Issues Involved:
1. Legality of the Review Order by the Central Board of Excise and Customs.
2. Jurisdiction of the Central Board of Excise and Customs under amended Section 35-A.
3. Applicability of procedural amendments retrospectively.
4. Validity of raising new claims at the appellate stage.

Issue-wise Detailed Analysis:

1. Legality of the Review Order by the Central Board of Excise and Customs:
The primary issue was whether the Review Order passed by the Central Board of Excise and Customs was legal. The Appellant argued that the Review Order was "prima facie, illegal and bad in the eyes of law." The contention was based on the amendment to Section 35-A of the Central Excises and Salt Act, 1944, which came into effect on July 1, 1978. The amendment bifurcated the review powers, assigning the power to review orders passed by the Assistant Collector to the Collector of Central Excise, not the Board. The Tribunal agreed with the Appellant, stating that the Board had no authority to exercise review power in this case.

2. Jurisdiction of the Central Board of Excise and Customs under amended Section 35-A:
The Tribunal examined the amended Section 35-A, which clearly delineates the review powers. Sub-section (1) grants the Board the power to review decisions made by the Collector of Central Excise, while Sub-section (2) assigns the power to review orders passed by subordinate Central Excise Officers to the Collector of Central Excise. The Tribunal found that the Board acted without jurisdiction in issuing the show cause notice and passing the consequent order, as the power to review the Assistant Collector's order vested with the Collector.

3. Applicability of procedural amendments retrospectively:
The Tribunal referred to the judgment in Apar (Pvt.) Ltd., Baroda v. Collector of Central Excise, Baroda, and the Supreme Court's pronouncements on the retrospective application of procedural laws. It was held that amended procedural laws generally operate retrospectively unless they create new disabilities or obligations. Since the show cause notice was issued after the amended Section 35-A came into force, the Board could not exercise revisionary powers over the Assistant Collector's orders. The Tribunal concluded that the Board's actions were without jurisdiction and must be set aside.

4. Validity of raising new claims at the appellate stage:
The Appellant raised a new argument regarding the illegality of the Board's Review Order at the appellate stage. The Tribunal cited the Andhra Pradesh High Court's decision in Commissioner of Income Tax, Andhra Pradesh v. Gangappa Cables Pvt. Ltd., which allows new claims to be raised at the appellate stage if sufficient material is on record. The Tribunal found that there was no bar to raising this plea before it for the first time and accepted the Appellant's argument.

Conclusion:
The Tribunal set aside the order passed by the Central Board of Excise and Customs and restored the order passed by the Assistant Collector of Central Excise, IDO, Salem. The appeal was allowed, emphasizing that the Board acted without jurisdiction and the procedural amendments applied retrospectively. The Tribunal also validated the raising of new claims at the appellate stage, provided sufficient material was on record.