Case: Gtc Industries Ltd Vs. Collector Of Central Excise, New Delhi

3. The assessee, a cigarette manufacturing company, was issued show cause notice on 26th August, 1983 in respect of its Bombay factory. A demand for excise duty in the sum of Rs. 28.93 crores was raised for the period 1978 to 1983. On 19th April, 1984 a second show cause notice was issued to the assessee. It was in respect of its Barod a factory. It related to period 1978 to 1983 and demanded Rs. 35.32 crores by way of excise duty. On 2nd September, 1985 a third show cause notice was issued to the assessee which related to its Bombay and Baroda factories. It sought to make the assessee and two of its job workers liable to excise duty in the sum of Rs. 13.37 crores for the period 1st July, 1978 to 30th June, 1980. The third show cause notice was issued by the Deputy Director of Anti Evasion, Central Excise, New Delhi4. In 1984 the assessee filed a writ petition before the High Court at Bombay challenging the first show cause notice. At subsequent stages the writ petition was amended so that the second and third show cause notices were also subjected to challenge. On 20th June, 1984 the High Court permitted the Revenue to proceed with the adjudication of the first show cause notice, but directed:?The order signed by the concerned officer as provided hereinabove will not be communicated to the respondents nor will the concerned officer or any other officer of the Excise Department inform the respondents of the fact that the order has been passed and/or signed by the concerned officer.?On 18th June, 1981 the High Court noted that orders had been passed in the adjudication proceedings and directed that the sealed cover in which the orders had been placed be opened and the orders shown to learned Counsel for the assessee and the Revenue; also, that the Revenue should supply copies of the orders to the assessees Advocates. On 21st July, 1994 the High Court directed that the assessee and/or the Revenue ?may file appeal to the Tribunal against the said orders within two months from today…..? and ?if the said appeal is filed by the petitioners or the respondents, as the case may be, the Tribunal to entertain the said appeal on merits without taking the objection of limitation.?5. On 29th May, 1992 the Central Board of Excise & Customs made an order under the provisions of Section 35E(1) of the Central Excise and Salt Act, 1944 directing the Commissioner (L & A) as Collector of Central Excise to apply to the Tribunal for determination of the questions therein stated, which arose out of the adjudication order dated 21st August, 1987 passed by the Director (L & A) on the three show cause notices, heard and dealt with together. The order of the Central Board was endorsed, amongst others, to the Principal Collector of Central Excise, New Delhi6. On 16th September, 1994 the assessee filed appeals before the Tribunal against the said adjudication order insofar as related to the first and second show cause notices, which was adverse to it7. On 14th December, 1995 an application for clarification/directions was made by the Commissioner (L & A), Customs and Central Excise, New Delhi to the Tribunal. The application stated that an appeal had been lodged by the applicant against the said adjudication order on that day, namely, 13th December, 1995. It stated that since a copy of the Boards order under Section 35E(1) had not been endorsed to the applicant, although there was a direction to file an appeal, he did not have knowledge of the direction until he was informed by the Deputy Director (Investigations), Directorate General, Anti Evasion, New Delhi by his letter dated 7th December, 1996. The application submitted that the date of communication of the Boards order should be taken to be the date on which the applicant was informed of it, i.e. 7th December, 1995; accordingly, the appeal that was being filed should be taken on record and listed for hearing on 14th December, 1995 alongwith the two appeals filed by the assessee8. On 25th March, 1996 the Tribunal passed the order that is under appeal. If referred to the orders of the High Court and held that the effective date of the said adjudication order was not the date on which it was originally signed but the date on which the sealed envelope had been opened pursuant to the High Courts direction and the said adjudication order shown to Counsel for the parties. The contention that the Boards order had been passed beyond the period stipulated in Section 35E was, therefore, negatived. The Tribunal referred to the application made to it by the Commissioner (L & A), New Delhi and accepted his case that he came to know of the Boards order only on or immediately after 7th December, 1995. Accordingly, it held that the Revenues appeal against the said adjudication order was in time. The Tribunal then noted the contention of the assessee that the assessment order had traversed beyond the scope of the grounds contained in the first and second show cause notices. The Tribunal saw no reason why the details regarding extra profit margin submitted in the third show cause notice should not be looked into for the purpose of the first and second show cause notices. It held that ?the allegations contained in the third show cause notice which are relevant and apposite to the period covered by first and second show cause notices can be looked into for the purpose of adjudication.?

Reasoning:
10. Section 35E(1) empowers the Board to call for and examine the record of any proceeding in which the Collector of Central Excise, as an Adjudicating Authority, has passed any decision or order under the Act for the purpose of satisfying itself as to the legality and propriety thereof. It can direct the Collector to apply to the Tribunal for determination of such points as arise out of the decision or order as are specified by the Board. Sub-section (3) of Section 35L requires that no order shall be made under Sub-section (1) after the expiry of one year from the date of the decision or order of the Adjudicating AuthorityThe 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 Boards order was passed after the period prescribed in that behalf by Section 35E of the Act14. It is to be noted that the High Court, by its order dated 21st July, 1994, permitted the assessee and the Revenue to file appeals against the said adjudication order within two months, but the Revenue did not take advantage thereof and filed its appeal only on 13th December, 199415. The Tribunal found no legal difficulty in holding that the allegations contained in the third show cause notice should be looked into for the purpose of adjudication of the first and second show cause notices. We find great difficulty in upholding the Tribunals view. As we see it, each show cause notice must be limited to the case that is made out therein by the Revenue. It is not within the jurisdiction of the Tribunal to direct otherwise; to do is to go beyond its purely adjudicatory function