HARICHAND K. KHANNA & YOGESH Vs. CCE

JUDGEMENT

(1.) THE reference before the Larger Bench is in view of a preliminary objection raised by the appellant when the appeal came up for hearing before a bench of this Tribunal. The appeals are directed against an order dated 24.2.94 passed by the Collector of Central Excise and Customs, Surat on adjudicating a show cause notice dated 1.8.91.

(2.) THE preliminary objection raised by the appellant was that the copy of the order received by the appellant did not bear the signature of the Collector. It showed as "Sd 24.2.94" over the name of the Collector and attested by the Superintendent of Central Excise and Customs, Headquarters, Surat. According to the appellant the show cause notice received by them also appeared likewise. The Learned Counsel for the appellant placed reliance on Final Order No. A/431/91 -NRB dated 8.8.9t passed by a two Member Bench of this Tribunal In Appeal No. E/3444/90 -NRB Chander Lakshmi Tempered Glass Co. (P) Ltd. v. CCE, Chandigarh in support of the preliminary objection raised by him. The above decision was rendered following an earlier decision of this Tribunal in Garden Reach Shipbuilders and Engineers Ltd. v. CCE, Calcutta 1987 (14) ECC 245 (T): 1987 (31) ELT 545. The Bench before whom the preliminary objection was raised was not able to persuade themselves to take a hard -and -fast rule following the view taken in the cited cases. It was under these circumstances the issue was referred for consideration of the Larger Bench.

(3.) IT was submitted on behalf of the Revenue that the appellant cannot be permitted to raise the issue with regard to show cause notice at this stage as no such objection was taken in their reply to the show cause notice nor before the adjudicating authority. Learned Departmental Representative sought to rely on a decision of the Madras High Court reported as of ACC Tuticorin v. Court of the Consumer Dispute Redressal Forum, 2000 (121) ELT 604 (Mad) and a decision of this Tribunal in the case of Sangameshwar Pipe and Steel Traders v. CCE, Belgaum, 2002 (80) ECC 213 (T): 2002 (141) ELT 252 in support of the above contention. Learned DR also contended that If the draft show -cause notice had been approved by the adjudicating Commissioner in the file and thereafter attested fair copy is issued to the noticee it will not vitiate the proceeding. He placed reliance on two decisions of this Tribunal reported in Ghanshyam Agarwal v. CCE, Allahabad, 1994 (71) ELT 373 and Montana Valves and Compressors (P) Ltd., v. CC, Mumbai, 2000 (116) ELT 220.