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1991 (10) TMI 156

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..... The Central Excise Officers of Headquarters, Baroda, on 23-11-1984 visited the factory premises of the appellants, as also of two Transport Companies, namely M/s. Shri Laxmi Transport Co., Vapi and M/s. Taj Associates, Vapi, and inspected the records. The inspection resulted in recovery of ten transport receipts, which appeared to have been issued without Central Excise G.P.1, and it appeared that 50,654 kgs of paper and paper boards were removed by the appellants without payment of duty during the financial year 1981-82 to 1984-85. Statements of the persons concerned both, at the appellants factory premises as also at the concerned transport companies, were recorded and ultimately the show cause notice dated 5-12-1985, was issued by the Su .....

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..... uiring the appellants to appear before the Additional Collector for personal hearing on that date, making a specific mention therein that fresh hearing was being given pursuant to the order of Collector (Appeals). The appellants, vide their letter dated 9-8-1989, raised an issue of Res judicata, and in reply dated 1-9-1989 the Department informed the appellants, that the Collector (Appeals) had directed transfer of the case, and as such, it was only the order-in-original that was set aside, restoring the position as it existed before passing of the said order. Subsequently, vide letter dated 6-8-1990 the Additional Collector herself informed the appellants that the matter was entrusted to her and that the appellants might file their reply t .....

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..... uld not have been done. He also submitted that due explanation about the subject transport receipts was also given. Elaborating the submission, he pleaded that in case of subject transport receipts, the consignments were initially despatched to one party who accepted only a part thereof, and the balance of unaccepted consignment was diverted to another party by drawal of separate invoice, but without any charge in the GP-1 as the goods were diverted without being brought back to the factory. He also stated that the department did not investigate on the explanation furnished. He also pleaded that the appellants were paying more than Rs. 18000/- annually towards the duty, and would not commit fraud for such a petty amount. 4. Ms. Lipika Maj .....

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..... ich has been reproduced earlier, it is absolutely dear that a direction is issued to transfer the case, i.e. a direction to comply with the statutory requirement of Sec. 8 of the Amending Act. Vide Sec. 35A(3) of CESA, 1944, the Collector (Appeals) is empowered to also refer the case back to the adjudicating authority with such directions as he may think fit for fresh adjudicator or decision........ . Unlike the cases relied upon as the case law, here is not the order setting aside or quashing the proceedings and directing the department to place the file before the Collector for such action as he may deem fit. A clear direction is given to transfer the case, which means, the show cause notice served, be placed before the Collector for .....

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