1990 (5) TMI 150

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....also directed the Asstt. Collector of Central Excise to examine the duty liability on polypropylene granules. In view of these findings, the Collector dropped further proceedings against the appellants. The Central Board of Excise & Customs (hereinafter referred to as the 'Board') called for, under Section 35E(1) of the Central Excises & Salt Act, 1944 (hereinafter referred to as the 'Act') and examined, the records of the proceedings leading to the said order of the Collector for the purpose of satisfying itself as to the legality and propriety of the said order. After considering the matter at length, the Board directed the Collector, under the provisions of the aforesaid Section 35E(1) of the Act, to apply to this Tribunal for the correc....

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....ced below :- "SECTION 35E. Powers of Board or Collector of Central Excise to pass certain orders.-(l) The Board may, of its own motion, call for and examine the record of any proceeding in which a Collector of Central Excise as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such Collector to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the Board in its order, (2) xxx    xxx   xxx   xxx   xxx (3) No order shall be made under sub-section (1) or sub-section (....

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.... authority. 5. This view would gain support from the different terminologies used in the different provisions in Chapter VIA relating to appeals in the Act. Section 35A provides that any person aggrieved by any decision or order passed under the Act by a Central Excise officer, lower in rank than a Collector of Central Excise, may appeal to the Collector of Central Excise (Appeals) within 3 months from the date of communication to him of such decision or order (emphasis added). Similarly, sub-section (3) of Section 35B provides that every appeal to the Appellate Tribunal shall be filed within 3 months from the date on which the order sought to be appealed against is communicated to the Collector of Central Excise, or as the case may be, ....

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....the amending enactment giving the amendment retrospective effect. In the present case, the impugned order was passed on 28-11-1984 or earlier but after the amendment of 11-5-1984 (the hearing before the Collector, as seen from his order, was on 21-8-1984). The facts being not similar to those in the Sarabhai Chemicals case, that decision has no application to the present case. 7. Both sides referred to the Delhi High Court judgment in Associated Cement Co. Ltd. v. Union of India, 1981 (8) E.L.T. 421 in which the Court had occasion, inter alia, to construe the following proviso to Section 36(2) of the Act as it stood at the material time :- "Provided further that no proceedings shall be commenced under this subsection in respect of any....