P.K. Desai, Member (J) -
(1.) INVOKING the provisions of Section 35G(1) of the Central Excises and Salt Act, 1944, the Central Excise Department has filed the present application seeking reference to the High Court, on the issue of law as formulated by them, pleading the same to have been arising out of this Bench's order No. 233 -234/90WRB dated 18 -5 -1990, in appeal No. 810/90SB (WR) filed by the Respondents herein.
(2.) THE facts relevant for the purpose are that Supdt. of Central Excise, Akola had issued a Show Cause Notice dated 5 -9 -1985 to the Respondents raising a demand for Rs. 8178.50 as differential duty payable for the period April 1984 to May 1985, and the Assistant Collector vide his order dated 26 -11 -1986 dropped the said Show Cause Notice. The Additional Collector of Central Excise, Nagpur, however, by issue of Memorandum dated 20 -3 -1989, issued a fresh show cause notice, raising -the said demand over again, by mentioning that the said proceedings were pending before the Assistant Collector on 27 -11 -1985, when the Central Excises and Salt (Amendment) Act, 1984 came into force, and by virtue of Section 8 of that Act the proceedings pending ought to have been transferred to the Collector and despite that, the Assistant Collector, who then had no jurisdiction to hear the matter, proceeded to adjudicate upon the Show Cause Notice, and as such the order of the Assistant Collector, being without jurisdiction, was null and void, and hence the Additional Collector had reopened the matter, and the Respondents were called upon to make their submissions on the point. On completion of the hearing, the Addl. Collector passed an order whereunder he confirmed the demand. The Respondents thereupon approached the Tribunal by way of an appeal, and also filed an application seeking stay of the recovery and waiver of pre -deposit. While advancing the submissions on the stay application, an argument was advanced as to the validity of the said impugned order, and therefore, the entire appeal was taken up for hearing, on that legal point, and after hearing the parties the Tribunal came to the conclusion that if the order passed by the Assistant Collector was, in their opinion legally defective, a remedy was to prefer an appeal to the Collector (Appeals). When the Additional Collector took upon himself to issue fresh Show Cause Notice, for reopening the case, he had to be held as having acted without jurisdiction, and without sanction of law, and hence the order of the Additional Collector was set aside.
(3.) THE department has, contended that, an issue of law has arisen from the said order and has formulated the questions for reference to the High Court as under : -
(i) Whether the adjudication order dated 26 -11 -1986 passed by the Divisional Assistant Collector covering the pending proceedings under proviso to Section 11A is valid when by virtue of Section 8 of the Central Excises and Salt (Amendment) Act, 1985 w.e.f. 27 -12 -1985 all proceedings tinder the proviso to Section 11A of Central Excises and Salt Act, 1944 pending before the Assistant Collector of Central Excise stood statutorily transferred to the Collector of Central Excise?
(ii) Whether the said order of the Assistant Collector which is a nullity and is invalid in view of the said Section 8 of Central Excises and Salt (Amendment) Act, 1985 can be ignored and competent adjudicating authority pass a valid order?
(iii) Whether the re -opening of the case proceedings by issue of Memorandum and the order based thereon by the Collector which includes Additional Collector who is the competent authority under the aforesaid mandatory statutory provisions of law is without jurisdiction and invalid merely because no legal authority has been cited by the adjudicating authority in adjudication order, although the authority for re -opening is given in paras 2 and 3 of the Memorandum.
(iv) Whether there is any need to cite legal authority when a course of action taken is under the mandatory statutory provisions of law.
(v) Whether the CEGAT order is in conformity with the aforesaid legal provisions.
Mr. A.V. Naik, the Ld. JDR, pleaded that the order passed by the Assistant Collector was beyond the jurisdiction invested in him, and as such, the same was null and void, and had to be deemed as non -existent, and that it was open for the competent authority to ignore the very existence thereof and initiate fresh proceeding, and that the competent authority, while initiating fresh proceedings did bring it to the notice of the party. To support his contention that the order is void and was not required to be set aside, he referred to the decisions of the Supreme Court in A.I.R. 1987 SC 1005 and of CEGAT, SRB in 1989 (14) E.T.R. 598.;