Customs, Excise and Gold Tribunal - Mumbai
Collector Of Central Excise Mumbai - Ii vs Gtc Industries Limited on 2 May, 2001
Equivalent citations: 2001(132)ELT236(TRI-MUMBAI)
ORDER
K. Sreedharan, President
1. This appeal, at the instance of the Revenue is against the order of the adjudicating authority dated 10/04/1992. That order happend to be passed pursuant to a show cause notice dated 15/09/1989 in relation to the transaction covering the period 01/09/1985 to 28/02/1987. The respondent herein challenged the show cause notice issued to them by the department earlier by filing writ petition No. 67/84. When they received the show cause notice dated 15/09/1989 that was also challenged by amending the writ petition No.67/84. High Court allowed the adjudicating authority to proceed with the adjudication pursuant to that show cause notice on condition that order passed thereon should not be communicated to the assessee or the notice. Final order on that show cause notice was passed by the adjudicating authority on 10/04/1992. That final order was filed before the High Court in a sealed cover and it was exhibited in that writ petition as exhibit "JJ". The order, marked as "JJ" in writ petition No. 67/84, is under challenge in this appeal filed by the Revenue.
2. This appeal was file don 24/01/1995. The appeal was pursuant to the order of review passed by the Board on 15/11/1994. When this appeal came up for final hearing Learned Counsel representing the respondent raised and objection regarding the maintainability of the appeal. According to the counsel the order of the adjudicating authority dated 10/04/1992 should have been reviewed by the Board within one year therfrom as contemplated by Section 35E of the Act. No review having been made within the said period of one year from 10/04/1992, the appeal is not maintainable. Yet another argument advanced by the Learned Counsel is that the High Court while disposing of the writ petition No.67/84 granted two months time to the Revenue to challenge the order passed by the adjudicating authority. Revenue did not avail of that right granted by the High Court either. So on both counts the appeal now before this Tribunal is not maintainable.
3. In support of the preliminary objection raised by Learned Counsel representing respondents, he relies on the decision of the apex Court in GTC Industries limited Vs. Collector if Central Excise 1997 (94) ELT 9. Paragraph 12 of that judgement is the one relevant for our purpose. It reads as follow:
"12. The High Court's order 20th June, 1984 required the revenue not to communicated to the assessee the said assessment order. It imposed no restriction on the activities of the Revenue. That this is so is borne out bey the terms of the subsequent order of the High Court dated 18th July, 1991 in which the revenue was directed to supply copies of the said assessment order to the assessee's advocated. The examination of the said assessment order by the Board under Section 35E of the Act was in no way inhibited by any order of the High Court; nor was the passing of an order directed to the assessing authority consequent upon such examination. We, therefore, hold that the Board's order was passed after the period prescribed in that behalf by Section 35E of the Act."
4. The order by the adjudicating authority which is sought to be challenged in this appeal was passed on 10/04/1992. Invoking the power of review as provided by Section 35E of the Act, if appeal was to be filed, the said order in review should have been passed within one year from 10/04/1992. Such an order of review was not passed within one year from 10/04/192. While disposing of the writ petition 67/84 the High Court gave an option to file appeal against the order passed by the adjudicating authority within two months from the date of the judgement, namely 21st July, 1994. The High Court thus gave right to the Revenue to challenge the order passed by the adjudicating authority within two months from 2/07/1994. the Revenue did not get that period extended by the High Court, for filing this appeal on 24/01/1995. thus by resort to the order of review passed under Section 35E of the Act or by virtue of the right granted by the High Court while disposing of the writ petition 67/84, the appeal could not have been filed on 24/01/1995.
5. In view of what has been stated above we uphold the preliminary objection raised by the Learned Counsel representing the respondents and hold that the appeal is hopelessly barred by limitation. In this view we are not considering the issue on merits. Appeal is dismissed.