1988 (12) TMI 282 - AT - Central Excise

Jurisdictional challenge resolved: Board maintains review authority despite statutory amendments

The dispute centered on the maintainability of an order of review under Section 35A of the Act by the Central Board of Excise & Customs. The key issue ... Order passed by Board maintainable in law, review notice being issued prior to amendment Issues:1. Maintainability of the order of review dated 16th June, 1981 under Section 35A of the Act passed by the Central Board of Excise & Customs.2. Interpretation of the relevant provisions of Section 35A before and after the amendment.3. Jurisdiction of the Central Board of Excise & Customs to pass the impugned order.4. Application of Section 6(e) of the General Clauses Act to the case.5. Impact of the amendment on pending proceedings and jurisdiction of the Board.Analysis:The dispute in this case revolves around the maintainability of the order of review dated 16th June, 1981, under Section 35A of the Act passed by the Central Board of Excise & Customs. The appellants manufacture metal containers and paid duty based on approved price lists. However, a show cause notice was issued by the Central Board proposing to review the order of the Asstt. Collector. The appellants challenged the order, citing the amendment to Section 35A, which limited the Board's jurisdiction to revise only proceedings of the Collector, not the Asstt. Collector. They argued that the Board lacked jurisdiction to review the order post-amendment.The crux of the issue lies in the interpretation of Section 35A before and after the amendment. The provision pre-amendment allowed the Board to revise any proceeding with a wide scope, including those of the Asstt. Collector. However, post-amendment, the jurisdiction was restricted to revising proceedings of the Collector only. The appellants contended that since the show cause notice was issued before the amendment but the order was passed after, the Board lost jurisdiction to revise the proceedings of the Asstt. Collector. The key question is whether the Board had the authority to pass the impugned order in light of the statutory changes.The central issue at hand is the jurisdiction of the Central Board of Excise & Customs to issue the impugned order. The amendment to Section 35A altered the Board's authority to revise proceedings, confining it to decisions of the Collector. The appellants argued that the Board lacked jurisdiction to review the Asstt. Collector's order post-amendment. However, the absence of an express provision transferring pending proceedings to the Collector meant that the Board retained jurisdiction over such cases. Citing relevant legal precedents, the Board determined that in the absence of a provision affecting pending proceedings, the Board could continue to hear and dispose of them, thereby upholding the maintainability of the order.The application of Section 6(e) of the General Clauses Act was pivotal in this case. The Act stipulates that proceedings saved are those in respect of acquired rights, privileges, obligations, liabilities, penalties, forfeitures, or punishments. The appellants argued that the repeal of Section 35A through substitution rendered the Board's order invalid. However, the Board rejected this argument, emphasizing that the absence of an express provision transferring pending proceedings meant that the Board could still exercise jurisdiction over them.The impact of the amendment on pending proceedings and the jurisdiction of the Board was a critical aspect of the case. The Board's authority to review proceedings was altered by the amendment to Section 35A, limiting it to decisions of the Collector. However, the absence of a provision transferring pending cases to the Collector meant that the Board could continue to hear and dispose of them. Drawing parallels to legal precedents, the Board concluded that in the absence of an express provision affecting pending proceedings, the Board retained jurisdiction, thereby deeming the order maintainable and directing the appeal to proceed on merits.