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TMI Blog1989 (12) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... tory premises of Orbit Electronics and obtained records of the unit for scrutiny and examination. Preliminary scrutiny of the records revealed that "Orbit" was manufacturing computers exclusively for and on behalf of Adprint Services on job work basis. On March 26, 1984 the Officers also visited the factory and office premises of M/s. Digital Systems International, Baroda, and collected records from the unit for further scrutiny and examination. Officers of the Central Excise found that M/s. Digital System International, Baroda, were also manufacturing the computers for and on behalf of "Adprint" on job work basis, besides manufacturing the computers of their own. Thereafter, on June 20, 1984 the officers of the Central Excise Department visited the office premises of 'Adprint' situated at Chhani, District Baroda. The Officers found that "Adprint" was not carrying out any manufacturing activity but was only located in one of the rooms of the building belonging to ORG Systems wherein one unit in the name and style of Research and Development Centre of ORG was situated and was engaged in the preparation of softwares as well as specifications and designs of computers. The Officers fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... falling under Tariff Item 33DD at Rs. 19,50,07,989.08 ps. manufactured and removed by them during the period from 1979 to May, 1984 less duty already paid on the said goods by (i) M/s. Digital Systems International, Baroda and (ii) M/s. Orbit Electronics, Baroda and by themselves. Relevant provisions of the Act and the rules were also mentioned in the show cause notice and the petitioners were also called upon to show cause against imposition of penalty under the provisions of Rule 173(1) of the Central Excise Rules, 1944. 5. In response to the show cause notice the petitioners filed reply dated December 20, 1984 and further reply dated April 19, 1985. After following necessary procedure and after hearing the parties the Collector, by his order dated June 29, 1985 (Ann. 'B' to the petition) held that the charges levelled in the show cause notice dated October 22, 1984 were proved, and he ordered payment of duty of excise at the appropriate leviable rate amounting to Rs. 3,32,96,010.58 (Rs. 3,20,56,260.43 basic duty + Rs. 12,39,750.15 special excise duty) on the goods, i.e. computers falling under Tariff Item 33DD manufactured and removed by the petitioners during the period from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so follow the same erroneous path and permit the petitioners to challenge the decision on preliminary objection while keeping the appeal filed before the appellate Tribunal pending and awaiting decision thereon, on merits?' 10. Section 35D of the Act provides for the procedure to be adopted by the appellate Tribunal. As provided in this section, in respect of the procedure before the appellate Tribunal, the provisions of Section 129C(1), (2), (5) and (6) of Customs Act, 1962 shall be applicable. Section 129C(6) of the Customs Act, 1962 provides that subject to the provisions of this Act (i.e. Customs Act, 1962) the Appellate Tribunal shall have power to regulate its own procedure and the procedure of the Benches thereof in all matters arising out of the exercise of its powers or of the discharge of its functions, including the place at which the Benches shall hold their sittings. Thus, it is clear that as far as the procedure to be adopted for hearing of appeals is concerned, the Tribunal has very wide powers. But wider the powers, greater the need to exercise restraint and circumspection. Why hearing of appeal should be piecemeal? Why, in appeal, wherein entire record is availabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lp the assessee to delay the final decision. But in that case the community at large suffers. At any rate the appellate forum should as far as possible avoid deciding the preliminary points or preliminary issues/objections separately. It would be just, proper and fair to decide all points together, much more so in appeal. In this view of the matter we are of the considered opinion that the course adopted by the appellate Tribunal is not just and proper. The appellate Tribunal ought to have decided all the points simultaneously together. Before the appellate Tribunal the entire record would be available. There is no need of recording evidence on preliminary points/issues and on other points/issues. Therefore, to avoid delay in final adjudication of appeal and also to avoid possible injury to the community at large, the Tribunal ought to have decided all the points together. 13. In above view of the matter, if we decide the petition challenging the decision of Appellate Tribunal on preliminary objection/issue only, we would be perpetuating the same error committed by the Tribunal. Not only that, it may be said that we are putting our imprimatur on the erroneous course adopted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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