Adjudication - a Non Existing Provision?
IN the 1998 Budget, the Board embarked upon a misadventure to exclude Cenvat/Modvat Credit from the purview of appeals before CESTAT from orders passed by Commissioner (Appeals) by inserting a new clause (d) in the proviso to Section 35B(1).
As per this clause, the Appellate Tribunal shall not have jurisdiction to decide any appeal in respect of any order if such order relates to, credit of any duty allowed to be utilised towards payment of excise duty on final products under the provisions of this Act or the rules made thereunder and such order is passed by the Commissioner (Appeals) on or after the date appointed under section 109 of the Finance (No. 2) Act, 1998. The explanatory memorandum stated it as, Section 35B being amended to provide that the second stage appeal in respect of MODVAT cases may lie with the Government of India by way of revision application. This would take effect from a date to be notified separately.
This provision was to come into effect from a date to be notified by the Government. And the Government has NOT notified the date so far due to public outcry.
Now, in the Circular issued yesterday, Board states, "cases related to issues mentioned at Sl. No. (a) and (d) under the first proviso to Section 35B(1) of the Central Excise Act, 1944 shall be adjudicated in the following manner." (and the Board has given unlimited monetary power to the JC/ADC.)
The problem dear Board, is that Sl. No. (d) under the first proviso to Section 35B(1) SIMPLY DOES NOT EXIST!.
The Adjudication confusion is not a recent phenomenon, but has a long history.