2008 (7) TMI 424

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....ication (DOT) as well as Mahanagar Telephone Nigam Limited (MTNL). According to the assessee as per the terms of the contract entered into between the assessee and the Government Departments/buyers were entitled to deduct liquidated damages in case of delayed supplies. Therefore, while submitted its return and fixing the cost of the product, the assessee deducted the amount of liquidated damages as deducted by the DOT and MTNL while making payment to the assessee. 3. A show cause notice was issued to the assessee on 3-6-1996 calling upon the assessee to show cause why action should not be taken and why the amount so deducted be not added to the cost of the goods so as to make it excisable. The assessee sent a reply to the show cause to the....

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....sed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct such authority to apply to the Collector (Appeals) for the determination of such points arising out of the decision or order as may be specified by the Collector of Central Excise in his order. (3) No order shall be made under sub-section (1) or sub-section (2) after the expiry of (one year) from the date of the decision or order of the adjudicating authority. 6. A perusal of this clause clearly shows that the Collector, Central Excise may call for the record of any case or any proceedings in which an adjudicating authority subordinate to him has passed any decision or order....

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.... Assistant Solicitor General of India on behalf of the revenue and Shri K.D. Sood, learned Counsel on behalf of the assessee. 10. The main contention raised by Shri Sandeep Sharma is that no ground of limitation was urged or argued when the appeal was argued before the Commissioner (Appeals) who passed the order on 29-10-1999. He further submits that the order dated 7-4-1998 was never challenged by the assessee and at the stage when appellate authority had already passed the order, the assessee could not challenge the same. 11. On the other hand, Shri K.D. Sood has relied upon the judgment of the Apex Court and contends that when the order on the basis of which appeal was filed is illegal, the appeal itself was not maintainable and this p....

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....e the Board to one of the two parties to a quasi-judicial proceeding before the Collector and the Board's right under Section35E to the exercise of the right of appeal by an aggrieved assessee from an order passed to its prejudice. The power under Section 35E is a power of superintendence conferred on a superior authority to ensure that the subordinate officers exercise their powers under the Act correctly and properly. Where a time is limited for the purposes by the statute such power should be exercised within the specified period from the date of the order sought to be reconsidered. To hold to the contrary would be inequitable and will also introduce uncertainties into the administration of the Act for the following reason. There appears....