Customs, Excise and Gold Tribunal - Delhi
Bharat Heavy Electricals Ltd. vs Cce on 8 January, 1991
Equivalent citations: 1992(38)ECR84(TRI.-DELHI)
ORDER S.V. Maruthi, Member (J)
1. The appellants filed a price-list. Without waiting for the approval of the price-list they have cleared the goods under gate pass No. 65 dated 10th June, 1981. Therefore, a show cause notice was issued proposing to impose penalty on the ground that the appellants contravened Rule 173C of the Central Excise Rules, 1944. On receipt of the reply the Asstt. Collector imposed a penalty of Rs. 1,000/-, against which the appellants filed a review petition under Section 35A(2) of the Central Excises & Salt Act, 1944.
2. The Collector dismissed the review petition on the ground that the appellants nave not given any reason for not preferring any appeal within the period of limitation or not filing the revision within the period. He also held that Section 35A of the Act cannot be used as a means to circumvent the limitations contained in Section 35. Against which the appellants have come up in appeal before us.
3. The main contention of the appellants is that the review powers under Section 35A can be exercised at the instance of assessee who has not filed any appeal for the purpose of rectifying any illegality or impropriety. They also submitted that the period of limitation for the purpose of filing the review petition under Section 35A(2) is governed by Sub-section 4 of Section 35A. Therefore, the appellants submitted that the Collector is not justified in rejecting their revision petition.
4. We agree with the appellants. The fact that the appellants have not filed any appeal does not debar them from invoking the provision of review under Section 35A(2). We are also of the view that the limitation for the purpose of filing the review is governed by the provision under Sub-section 4 of Section 35A. Therefore, the Collector ought to have decided the appeal on merits instead of rejecting the same on technical grounds.
5. The question now that arises for consideration is the authority to whom the appeal is to be sent back for the purpose of re-considering the issue on merits.
6. Under Section 35A(2) of the Act the competent authority to revise any decision or order is the Collector of Central Excise. After the amendment introduced in 1980 by the Finance Act No. 2 of 1980 the power of revision conferred on the Collector of Central Excise under Section 35A(2) is taken away. The power conferred under Section 35A(2) is quasi-judicial power. The Collector of Central Excise after the amendment referred to above is now competent only to exercise executive powers and he is not competent to exercise quasi-judicial power. Under the amendment referred to above it is only the Collector (Appeals) who is competent to exercise quasi-judicial power and hear the appeal against the order of the Central Excise officers. Therefore, since the Collector of Central Excise is not competent to exercise quasi-judicial power the appeal cannot be sent back to the Collector of Central Excise.
7. Therefore, we have to see whether the appeal can be remanded to the Collector (Appeals) who is exercising quasi-judicial power under the amended act. In other words whether the appellant has vested right to his appeal being decided by the Collector of Central Excise. The forum before which an appeal is to be decided is a matter relating to the procedure. It is now settled that an amending act affecting the procedure will be retrospective in operation unless otherwise specified.
8. In this context we may refer to the judgment of Supreme Court in UOI v. Sukumar Pyne 1966 SC page 1206 wherein it was held that "a person accused of the commission of offence has no vested right to be tried by a particular court or a particular procedure except in so far as there is a constitutional objection by way of discrimination or the violation of any other fundamental right is involved. It is well recognised that no person has a vested right in any course of procedure."
9. To the same effect is the judgment of the Supreme Court in Nani Gopal Mitra v. State of Bihar wherein it was held that:
it is true that as a general rule alterations in the form of procedure are retrospective in character unless there is some good reason or other why they should not be.
10. Same principle is embodied in Section 6 of General Clauses Act. The effect of the application of this principle is that pending cases, although instituted under the old act but still pending are governed by the new procedure under the amended law....
11. From the above it follows that the appellants have no vested right in any course of procedure and that pending cases although instituted under the old act but still pending are governed by the new procedure under the amended law. Therefore, amended law is applicable to the proceedings in dispute. If the amended law is applicable the authority who is empowered to exercise quasi-judicial power is the Collector (Appeals), and therefore, the appeal is remanded to him to decide it on merits. The appeal is thus remanded to the Collector (Appeals) within whose jurisdiction it falls.