TMI Blog2008 (12) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Committee of Commissioner. 3.1 Before proceeding further, it has to be stated that this legal point raised by the learned Advocate has already been covered in the order in paragraphs 7.3 and 7.4. However, we proceed to examine this issue in depth. For better appreciation, we reproduce Section 35E of the Central Excise Act, 1944 :- Section 35E. Powers of Committee of Chief Commissioners of Central Excise or Commissioner of Central Excise to pass certain order. - (1) The Committee of Chief Commissioners of Central Excise may, of its own motion, call for and examine the record of any proceeding in which a Commissioner of Central Excise as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such Commissioner or any other Commissioner to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the Committee of Chief Commissioners of Central Excise in its order : Provided that where the Committee of Chief Commissioners of Central Excise differs in its opinion a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cision or order of the adjudicating authority and the provisions of this Act regarding appeals, including the provisions of sub-section (4) of Section 35E of Central Excise Act, 1944 shall, so far as may be, apply to such application. 3.3 This would mean that Section 35E, while it requires the Committee of Commissioners to direct the Commissioner to apply for determination of such points arising out of the decision, the Tribunal is required to consider it as an appeal against the order. How the appeals are to be considered is covered by Section 35(C) of Central Excise Act, 1944 which empowers the Tribunal to pass such orders on the appeals as it thinks fit. Confirming, modifying or annulling the decision or order appealed against or may refer the case back to the authority which passed such decision or order with such direction as the Appellate Tribunal may think fit, for a fresh adjudication or decision, as the case may be, after taking additional evidence, if necessary. This shows that while deciding the appeal, the Tribunal is empowered to take additional evidence. Further Rule 10 of CESTAT Procedure Rules relating to production of evidence reads as under :- Rule 10. Groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied product. As rightly identified by Commissioner, objective is to classify the product correctly. For this purpose all evidences available have to be considered. Commissioner failed to consider the evidences available on record such as statements, laboratory test reports, chemical examiner s report, acceptability or otherwise of chemical examiner s report, facts emerging out of cross-examination of two chemical examiners. All the evidences considered by the Tribunal while reaching the conclusion are part of the records. Analysis of statutory provisions shows clearly that Tribunal can allow even new evidences to be put forth with the leave of the Tribunal or Tribunal can include new evidence. What is required is appellant should get an opportunity to counter. Since, what has been passed is a remand order, the requirement of opportunity to appellant is clearly fulfilled. Moreover, Committee also has raised this issue that classification of Starch should be considered and we feel that order passed does not contain any error apparent. We are not able to agree with the Learned Advocate that other than use of Flash Drier, nothing else can be considered and this failure to agre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellants would get full opportunity to present their case on all the new points which is what the law requires Tribunal to do. 6. However, we have to accept that there is an error apparent in the order which is applicability of extended period under Section 11A and it has not been considered. Commissioner had found that the classification list filed by the appellants, declaration for Modvat credit, RT-12 reports etc. are sufficient to show that extended period is not invocable. However, the issue is not as simple as it was considered by the Commissioner. He had considered only the application of heat by Flash Drier and none of the other aspects which were brought up. Since the main issue has been remanded for consideration, we feel that there is a need to look into whether the manufacturing process had been intimated to the department while filing the classification list and if so, was it complete and reflected correct position; whether the department was aware of the internal laboratory reports of the company which show that the product meets the specification of modified starch. Without expressing any opinion or conclusion, we leave the issue open so that appellants may make the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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