TMI Blog1960 (10) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Additional Deputy Superintendent (Central Excise) called upon the appellant, by his notice dated 4-10-1957, for contravening rules 151 and 151(c) read with rule 141 of the Central Excise Rules, to show cause why 6895 1bs of tobacco should not be confiscated and also why a penalty under rule 151 (c) should not be levied. 3. The appellant sent his explanation and also requested that he might be given a personal hearing. 4. The Assistant Collector, Central Excise by his order dated 30-12-1957, held that 6895 1bs. of I.A.C. Natu noti tobacco should be seized. He also levied a penalty of ₹ 100/-. As regards the confiscation, he allowed option to the appellant under Section 34 of the Central Excises and Salt Act, 1944, to pay &# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h costs. It is this order that is how under appeal. 8. The argument pressed upon us by Srimati Venkayamma, learned counsel for the appellant, is that under Section 35 of the Central Excise Act. the only power that is vested in the appellate authority is to confirm, alter or annul the decision or order appealed against and it is not competent for him to direct a fresh inquiry. As the controversy centres round the interpretation of Section 35, it is useful to reproduce it here. Section 35:-- (I) Any person deeming himself aggrieved by any decision or order passed by a Central Excise Officer under this Act or the Rules made thereunder may within three months front the date of sueh decision or order, appeal therefrom to the Central Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an appeal satisfactorily. If the appellate authority finds that the procedure prescribed by a provision of law has been violated by an officer he has either to allow the appeal without directing any fresh inquiry or dismiss the appeal, if the argument of the appellant's counsel were to prevail and this cannot be regarded as a satisfactory state of affairs. We, therefore, feel that the power of remand is inherent in the appellate jurisdiction conferred on an appellate authority. 10. This view was expressed by Satyanarayana Raju J. in Narasimharaju v. State Transport Authority, (1958 Andh LT' 627). There, the learned Judge was dealing with Section 64-A of the Motor Vehicles Act. All the same, we feel that that decision has analo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perly made to them is quashed by this court by a writ or certiorari on any ground which does not deal with the merits of the case, It is not only permissible, but it is also incumbent on the inferior Tribunal to take up the application and re-hear the same. 13. We therefore, feel, despite the pursuasive arguments of Srimati Venkayamma, that the submission that the Assistant Collector has no power to start the proceedings afresh on the same grounds is not substantial. It is consequently rejected. 14. It is lastly urged that if the matter is sent back to the same Assistant Collector, the appellant is not likely to obtain justice at his hands. We are not persuaded that there is any force in this contention. It is nowhere suggested that ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
