TaxTMI 
TaxTMI 
1985 (9) TMI 167
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....ng and clearing Rock Phosphate without taking Central Excise licence and without paying Central Excise duty from 11-9-1975. A sample of the said Rock Phosphate was drawn on 9-11-1976 by the Central Excise Officers and was tested to check whether it was liable to duty as "Fertilizers, All Sorts" under item 14-HH of the Central Excise Tariff. The assessee was called upon vide show cause notice C. No. V/14-HH/15/14/77-G.L.2, dated 19-12-1977 to show cause (a) as to why the duty of Rs. 1,11,130.37 P should not be demanded from the assessee under rule 9(2) of the Central Excise Rules, 1944 and (b) why a penalty should not be imposed under Rule 9(2) and 173Q of the Central Excise Rules, 1944 for the contravention of Rules 174, 9(1) and 173-Q of the Central Excise Rules, 1944. In reply to the said show cause notice the Appellant had contended before the Assistant Collector that the samples drawn on 9-11-1976 was not representative in character and therefore, the test report should not be made applicable to the clearances which took place before the drawal of samples. It was also argued that the sample was not drawn in the presence of their representative. The learned Assistant Collector h....
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....as bifurcated. He has pleaded by virtue of the amended provision of sub-section (1) of Section 35-A where the order had been passed by the Collector of Central Excise, the review power was vested with the Board and as per provision of sub-section (2) of Section 35-A where an order has been passed by a Central Excise Officer who was subordinate to the Collector of Central Excise, the power of review was to be exercised by the Collector of Central Excise. The learned Consultant has referred to a judgment of the Tribunal in the case of Apar (Pvt.) Ltd., Baroda v. Collector of Central Excise, Baroda in order No. 75/83,C dated 9-3-1983 reported in 1983 (2) E.T.R. 78. The learned Consultant has pleaded that the facts of the earlier order of the Tribunal were similar to the Appellant's case and the Appellant's case is fully covered by the earlier judgment of the Tribunal. He has also stated that the Appellant had not taken this stand earlier and there is no bar for taking the same at this stage. The learned Consultant has also referred to the reply to the Review Show Cause Notice which appears on pages 31 to 42 of the paper book. The learned Consultant has referred to the written argument....
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....A. Revision by Board or Collector.-(1) Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963) (hereinafter referred to as the Board) may, of its own motion or otherwise, call for and examine the record of any proceeding in which any decision or order has been passed under this Act or the rules made thereunder by a Collector of Central Excise (not being a decision or order passed on appeal under Section 35) for the purpose of satisfying itself as to the correctness, legality or propriety of such decision or order and may pass such order thereon as it thinks fit. (2)  The Collector of Central Excise may, of his own motion or otherwise, call for and examine the record of any proceeding in which any decision or order has been passed under this Act or the rules made thereunder by a Central Excise Officer subordinate to him (not being a decision or order passed on appeal under Section 35) for the purpose of satisfying himself as to the correctness, legality or propriety of such decision or order and may pass such order thereon as he thinks fit. (3) (a) No decision or order under this section shall be varied so as to prejudicially....
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..... 1970, Supreme Court 1636 wherein the Supreme Court after referring to the English law and earlier Indian law on the subject held as under: 'It is therefore clear that as a general rule the amended law relating to procedure operates retrospectively. But there is another equally important principle, viz. that a statute should not be so construed as to create new disabilities or obligations or impose new duties in respect of transactions which were complete at the time the amending Act came into force (See In re : A Debtor 1936 Ch. 237 and In re : Vernazza, 1960 A.C. 965). The same principle is embodied in Section 6 of the General Clauses Act., Para 9. The view of the Board could have been said to be sustains-able if show cause notice had been issued before the amended Section 35-A came into force. In such a case Board could have continued to deal with the matter in accordance with the earlier provisions. In view of the Supreme Court's pronouncements, referred to above, after the amended Section 35-A had come into force the Board could hot have exercised revisionary powers over orders passed by the Assistant Collector of Central Excise. This could be done only by the Collector. T....