S.V. Maruthi, Member (J)

1. The dispute relates to the maintainability of the order of review No. 22/81 dated 16th June 1981 under Section 35A of the Act passed by the Central Board of Excise & Customs.

2. The appellants manufacture metal containers for its use by using their own material and also on job work basis with the materials supplied by others. After the approval of relevant price lists the appellants paid duty. However, the Asstt. Collector issued a show cause notice proposing to recover duty alleged to be short levied on the metal containers. The appellants submitted a reply. On a consideration of the reply the Asstt. Collector held that there was no case for recovery of any duty alleged to have been short paid. The Central Board of Excise & Customs issued a show cause notice on 8th May 1978 proposing to review the order under Section 35A. After considering the reply submitted by the appellants the Board passed the impugned order reviewing the order of the Asstt. Collector in its order dated 16th June, 1981, against which the appellants filed a revision under Section 36(2) which was transferred to this Tribunal on its constitution.

3. In the appeal the appellants raised a preliminary objection to the order of review dated 16lh June 1981 on the ground that it is not maintainable, as Section 35A was amended by substituting a new provision by the Central Excises and Salt (Amendment) Act, 1978 (Act No. 25 of 78) which came into effect from 1st July, 1978. According to him prior to amendment of Section 35A the Board has jurisdiction not only to issue show cause notices but also revise any proceeding in which any decision or order has been passed under the Act i.e. Central Excises and Salt Act, 1944 for the purpose of satisfying itself as to the correctness, legality, propriety of such decision or order. After amendment the Board's jurisdiction is restricted to revise only the proceeding in which any decision or order has been passed under the Central Excises and Salt Act, 1944 by a Collector of Central Excise, and under Sub-section (2) of Section 35A the Collector is conferred with the jurisdiction to revise the order of any Central Excise officer subordinate to him for the purpose of satisfying himself as to the correctness legality or propriety of such decision or order. Therefore, it is submitted that though as on 8th May, 1978 the Board has jurisdiction to issue the show cause notice it ceased to have any jurisdiction to revise the order on 16th June, 1981.

4. It is further submitted that new Section 35A has come in substitution of the old Section 35A of the Central Excises and Salt Act, 1944 and therefore, Section 35A has in effect been repealed by Section 35A.

5. It is submitted that where a new provision is 'substituted' for an existing provision the result is an express repeal of the existing provision and enactment of a new one in its place. The effect of repeal is to destroy all inchoate rights and all causes of action that may have arisen under the repealed statute.

6. He also submitted that under Section 6(e) of the General Clauses Act, a proceeding saved is only a proceeding in respect of any right and privilege acquired or 'accrued' and any obligation, liability, penalty forfeiture or punishment incurred within the ambit of clause (c) and (d) of that Section.

7. He further submitted that in respect of other matters though 'anything done' under the statute will not be invalidated after its repeal by virtue of clause (b) of Section 6, but it will be rendered abortive if no right was acquired or had accrued and no liability had been incurred prior to repeal.

8. He relied on the following passage of Maxwel on interpretation of statutes.

"No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the court in which the case is pending, and if, by an act of Parliament the mode of procedure is altered he has no other ri