TaxTMI 
TaxTMI 
1989 (9) TMI 114
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....ontrol of the petitioner/company the goods could not be exported. The petitioner/company had no doubt sold the goods to Kirloskar Electric Company Ltd., for export. But since Kirloskar Electric Company Ltd., could not export the goods, application was made by the petitioner/company to the Asstt. Collector under the Excise Act for permission to sell the goods within the territory of India. By an Order dt. 10th July 1974 the Asstt. Collector of Central Excise gave permission to divert the goods for internal market as requested by the petitioner. The petitioner was further directed by the said order to approach the Superintendent of Central Excise for consequential endorsement in the books of the said authority so as to enable the petitioner/company to make necessary amendment in their own books. However, on 22nd July 1975 a Show-Cause Notice was issued by the Superintendent of Central Excise, Pune, to the petitioner to show cause as to why the differential duty amounting to Rs. 24,987.85 together with the penalty for non-payment thereof should not be levied upon the Petitioner/Company in view of the fact that the duty payable for sale of goods in the territory of India was not dul....
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....rcumstances of the present case to enhance the penalty to anything beyond what was done by the Asstt. Collector; (ii) that the purported exercise of the power of penalty is perverse in the circumstances of the case; (iii) that there can be no recovery of short levy of duty after the goods have been lawfully cleared from the Factory. However, I may state here that so far as the 3rd proposition is concerned, Mr. Setalvad has specifically given up the same. He no longer presses his claim of immunity from the liability to pay the differential duty. He made it clear that he wished to keep the point open. Only Points Nos. (i) & (ii) were something upon which submissions were made by the learned Counsel. 4. As regards the 1st Point, our attention was invited to the scope of the Central Government's power under Section 36 of the Act in so far as they relate to the power to enhance the penalty. It is, therefore, necessary to examine sub-section (1) and sub-section (2) of the said Act. Sub-section (1) of Section 36 runs as follows :- "(1) The Central Government may on the application of any person aggrieved by any decision or order passed under this Act or the rules made....
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....correctness, legality or propriety of any decision or order "passed under Section 35 or Section 35A of this Act" can be subjected to the revisional power. In other words, said sub-section (2) gives no power whatsoever to the Central Government to go into the question of legality, correctness or propriety of the order passed by the Asstt. Collector ignoring the order passed by the Collector in Appeal under Section 35 of the Act. 6. The next point to be noted is that the revisional power of the Central Government also extends to the order or decision passed by the Collector under Section 35 of the Act. Assuming that the Collector was having some kind of review or revisional jurisdiction and he could have passed such an order and could have passed but did not exercise that jurisdiction to pass any order, that power cannot be exercised by the Central Government. In other words, that which the Collector did not do cannot be looked into. The legality, propriety or correctness only of the order passed under Section 35 can be gone into. 7. In the instant case, the Collector had reduced the penalty from Rs. 250/- to Rs. 100/-. This was the order passed by the Collector. At the most, a....
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....order in question under Chapter IV but it could not substitute for that order its own order directing the variation in the conditions of the permit of the appellant." We may briefly paraphrase the legal position by saying that in its revisional jurisdiction the Central Government is exercising the power to revise the decision of the appellate authority. It is not exercising the original jurisdiction. This is the ratio of the Supreme Court judgment. It may be that the authority of the first instance, (which exercises original power) would be having wider powers and if the revisional authority had the original power, the revisional authority would be also having the same power as the original authority. But in the instant case, it cannot be disputed that the order of the original authority had merged in the order of the appellate authority and all that was required to be seen by the revisional authority was whether the appellate authority had transgressed its own jurisdiction. In this view of the matter, in our opinion, it must be held that in the instant case the Central Government acting as a revising authority had transgressed its power by assuming that it had the jurisdicti....