1990 (11) TMI 284

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....imposing a penalty of Rs. 2 lakhs under Rule 173Q of the Central Excise Rules, 1944. 2. When the appeal was posted for hearing, the appellants were represented by Sri S.K. Bagaria, advocate, and the respondent Collector by Shri M.N. Biswas, Senior Departmental Representative. 3. Shri Bagaria raised the question of lack of jurisdiction on the part of the Assistant Collector of Central Excise to issue the show cause notice invoking the proviso to Section 11A(1) of the Central Excises & Salt Act. He pointed out that the notice was issued on 9-1-1986 which was after the said provision had been amended investing the power thereunder only with the Collector. It has been decided in a number of cases by the Courts as well as by different Benches ....

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....ctor and it was the Collector who adjudicated the case. As the order has been passed by the competent authority, no illegality is involved. He, therefore, pleaded that the preliminary point raised by the learned advocate for the appellants may be rejected and the appeal heard on merits. 5. We have considered the arguments advanced by both the sides on the preliminary issue of lack of jurisdiction on the part of the officer who issued the show cause notice and the maintainability of the order, the objection raised by the learned SDR against the application made by the appellants for permission to raise the question citing the decision of the CEGAT, Special Bench in Gaurav Paper Mills in support of his stand. We have perused the said decisio....

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.... into the root of the matter. As held by the Andhra Pradesh High Court in Commissioner of Income-tax, A.P. v. Gangappa Cables -116 ITR 778, it is open to the Appellate authority to allow a fresh point to be raised. This judgment has been followed by the Tribunal in Collector of Central Excise v. Hiper -1989 (41) E.L.T. 322. It has been held in a number of cases that show cause notice must be issued only by the Collector for invoking the longer period of limitation for demand of duty under proviso to Section 11A. Show cause notices issued by officers not empowered to issue such notices have been held to be not legal and proceedings arising from such notices have been set aside. The following decisions are relevant. (1) Mysore Prefabs and Pr....