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TMI Blog2005 (11) TMI 322X X X X Extracts X X X X X X X X Extracts X X X X ..... on. He avers that the impugned order passed by Commissioner of Central Excise Mumbai, was examined by Central Board of Excise & Customs under the powers vested with it under Section 35E(1) of the Central Excise Act, 1944 in order to satisfy itself as to the legality and propriety of the said order. It was not satisfied that the impugned order was legal and proper. It thereupon directed the Commissioner to apply to CESTAT for the correct determination of certain points arising out of the said order. The said Board forwarded its review order to the Commissioner of Central Excise & Customs Mumbai who passed the impugned order. However the appeal to the Tribunal was preferred by Commissioner of Central Excise Surat-II in whose jurisdiction the respondent fell. The ld. Advocate submitted that Surat Commissioner is not the person who was authorized by the Board to file an appeal against the order passed Mumbai Commissioner. It was contended that under Section 35E(1) of the Central Excise Act, 1944 at the relevant time only the adjudicating authority can make an application to the appellate Tribunal who thereupon can treat the application as an appeal under Section 35B. In the present cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor is warranted in this case. After all, the Board has followed every provision of the Act while reviewing the order and it is at best a technical lapse which could be rectified if the Tribunal directs the proper authority to file an appeal. 8. We observe that the ld. SDR was bravely fighting a losing battle. It is now well settled, (GTC decision of the Tribunal Supra settled the issue) that the Board has to direct only the adjudicating authority to file an appeal as per Section 35E(1) of the Act as it stood in 1999. It is only in 2001 Section 35E(1) was amended whereby the Board could have directed any other Commissioner to file an appeal. The ld. SDR's plea that the error can be rectified even now is not tenable as at that point of time (1999) the Board is not empowered to authorize any Commissioner other than the one who adjudicated to file an appeal The suggestion that as to who should file an appeal is only procedural is also unacceptable. What is laid down in Section 35E(1) at the relevant time is not procedural. It is substantive in nature. We are unable to agree with the ld. SDR that at this stage the defect can be rectified. The Board has rightly directed Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tine removal was not established. He proceeded to determine the value of consignments covered under such IGPs by adopting the formula based on the statements of the Director of the company and its Manager. He arrived at the assessable value of all goods mentioned in Annexure-I to the show cause notice to be Rs. 96,75,248/-. 13. The ld. Advocate assailed the method adopted by the Commissioner in arriving at the value. He submitted that while the price shown on the LRs formed the basis for arriving at the assessable value in respect of some goods, a different method was adopted for arriving at the value of goods removed under certain IGPs where there were no corresponding LRs. He argued that the assessable value of the goods can't vary on the fact that a LR is available or not. He submitted that the double standard adopted by the Commissioner resulted in inflation of assessable value with attendant consequences. It was further submitted that the Commissioner did not discuss as to why he considers the price arrived at on the basis of the formula suggested by the Director and the Manager did not call for any deduction towards excise duty, dealers margin and other post manufacturi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the shortages amounted to taxing the same goods all over again. It is also argued that the Commissioner did not dealt with the averments made before him and in the reply to the Show Cause Notice. Para 103 of the Order-in-Original disposed off appellants contentions perfunctionily. 17. We perused the order. The Commissioner does not appear to be dealing with the averments made before him. His observations that there is no satisfactory explanation is abrupt. He is required to examine the contention in detail and give findings as to why the explanation is not satisfactory. We remand this issue of shortage of finished goods and inputs to the Commissioner to examine the contentions of the appellant afresh. 18. In regard to penalty imposed under Section 11AC it was argued that the appellant company deposited Rs. 40,50,000/- even before the issue of the show cause notice and therefore no penalty can be imposed under that Section. This averment will have to be examined. We observe that since duty in regard to goods mentioned in Annexure I and V has to be redetermined the issue whether penalty is imposable if so the quantum of penalty also needs to be determined by the Commissio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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