TMI Blog1986 (3) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... 35B of the Central Excises and Salt Act, 1944 the appeal was to be filed within three months. By virtue of the provisions of Removal of Difficulties Order No. GSR 597(E), dated 11-10-1982 the appeal could have been filed within six months. The appellant has filed an application for condonation of delay with an enclosure explaining the datewise delay in filing the appeal. The said appeal was received in the Registry on 22-11-1982. The application for condonation of delay is reproduced as under :- 1. An appeal has been filed before the Customs, Excise and Gold (Control) Appellate Tribunal, New Delhi vide Collector s letter C. No. V/68,/2/5/82 JC dated 18-11-1982 in terms of the provisions of the sub-section(2) of Section 35-B of the Central Excises and Salt Act, 1944, against the Order-in-Appeal No. 136/82(M) dated 12-4-1982 passed by Appellate Collector of Central Excise, Madras. 2. The above order in Appeal No. 136/82(M) dated 12-4-1982 was received in the Office of the Collector of Central Excise, Madras on 27-4-1982 and the time-limit of 6 months for filing an appeal as per the Customs, Central Excise and Gold (Control) Removal of Difficulties Order, 1982 dated 11-10-1982, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uments the appeal was dispatched." 2. Shri B.R. Tripathi, the learned SDR, has appeared on behalf of the applicants. He has reiterated the contentions made in the application for condonation of delay. He has referred to the proviso of erstwhile sub-section (2) of Section 36 of the Central Excises and Salt Act, 1944. He has pleaded that the Revenue had a right to review the matter within one year from the date of the order passed by the Appellate Collector of Central Excise. He has pleaded that in the instant case the Appellate Collector of Central Excise had passed the order on 12-4-1982 and as such the Revenue could have reviewed the matter within one year from the date of the passing of the order by the Appellate Collector of Central Excise. He has pleaded that all the time it was the intention of the Revenue to review the order and the matter was under study. He has stated that due to change of law the Revenue had to file an appeal, and by the amendment of law the substantive right of review cannot be lost. Shri Tripathi, SDR, has also pleaded that on the same issue the appellant has also filed an appeal, and the same is also pending. He has pleaded that the delay of 26 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On the contrary, an order of short-levy or non-levy under Section 35-A would fall only under the third proviso and not the second one." He has referred to another judgment in the case of Corn Products Co. (India) Ltd. and another v. Union of India and another reported in 1984(16) E.L.T. 177 where the Hon ble Bombay High Court had held that 3rd proviso to Section 36(2) of the Central Excises Act has the effect of restricting the revisional jurisdiction of the Central Government in matters which arise out of the order under sections 35 and 35 A relating to non-levy, short-levy or erroneous refund. This restriction is in the form of an express provision that the notice to show cause in respect of these matters must be given within the time-limit specified in Section 11A i.e. within the period of six months. Since the notice to show cause by the Central Government in the instant case was issued beyond the period of six months, consequently, the exercise of revisional jurisdiction by the Central Government is wholly without jurisdiction. The learned Advocate has pleaded that in the application for condonation of delay there is no proper explanation for condonation of delay and the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 75, 76 and 77 from the said judgment are reproduced as under : - 72. We have examined this contention of the learned representative of the Respondents with great care because it raises a delicate point of law but we cannot persuade ourselves to agree with the arguments advanced by the learned SDR, Shri Lakshmi Kumaran. We say so because in the first instance, we firmly feel that the question of vested right arises only in favour of the Subject , which would be assessee or taxpayer in this case, and can never be urged by the State , to be existing in its favour. We feel fortified in this view, in the context of definition of this term ; vested rights as outlined in Black s Law Dictionary (Fifth Edition ; page 1402). 73. We consider it expedient to extract and reproduce the relevant portion of the paragraph, because apart from the fact that this authority lays down the principle that only those rights which are : complete and consummated , can be characterised as vested rights ; the whole description gives an unmistakable indication that the concept of vested rights has inherent in itself the connotation that it exists only in favour of private citizens and the definiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal of law under which it was claimed, was not entertained. 76. We, therefore, find the contention of the learned SDR as to the existence of vested rights in favour of the State to be absolutely untenable because of the stage the returns are filed or assessment made, or refunds are allowed by the concerned officers, question of vesting of any right in favour of the State, acting through the revenue authorities does not arise. For, even issuance of Show Cause Notice, does not automatically create an accrued right, because as rightly urged by Shri Chandersekharan, the learned counsel for one of the appellants, that the right even at that stage is inchoate, and that it becomes complete only when the adjudication order is passed. 77. We have thus to examine the issues, shorn of this theory of vested rights . We observe that the generally accepted view, supported by judicial authorities; is to the effect that any legislation while bringing about an amendment, normally incorporates a saving clause, whenever there is an intention to protect previous operation of the repealed law." Accordingly, we hold that there is no vested right in the case of the State and there is also no savi ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
