TaxTMI 
TaxTMI 
TaxTMI 
2000 (6) TMI 246
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....t involved in the demand show cause notices exceeded Rs. 50,000/- in each case and that the Asstt. Collector of Central Excise was not competent to adjudicate the cases where the duty involved was above Rs. 50,000/- in terms of Board's particular Circular No. 208/26/92 CX-6 (Circular No. 3/92 CX-6), dated 14-5-1992. The appellate authority agreed with the Department that the adjudicating authority had exceeded his jurisdiction and has exercised powers beyond his competency. The appeals filed by the Deptt. were allowed and the orders passed by the Asstt. Collector of Central Excise were set aside with the directions that the consequent action to remedy the situation may be taken by the Deptt. 2. As all the appeals arise out of common Order-in-Appeals and involve similar issue for consideration, they were heard together and are being disposed of by this common order. 3. Shri P.S. Bedi, Consultant appearing for the appellants submitted on 22-5-2000 when the matter came up for hearing, that Board's circular was not binding on the Asstt. Collector of Central Excise in view of the powers conferred on him under Section 11A of the Central Excise Act, 1944. It was his plea that ....
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.... or five years, as the case may be. (2) The Assistant Collector of Central Excise or, as the case may be, the Collector of Central Excise shall, after considering the representation, if any, made by the person on whom notice is served under sub-section (1), determine the amount of duty of excise due from such person (non being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined. (3) For the purposes of this section, - (i) "refund", includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (ii) "relevant date" means, - (a) in the case of excisable goods on which duty of excise has not been levied or paid or has been short-levied or short-paid - (A) where under the rules made under this Act a monthly return, showing particulars of the duty paid on the excisable goods removed during the month to which the said return relates, is to be filed by a manufacturer or producer or a ....
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.... been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of fraud, collusion or any wilful mis-statement or suppression of facts or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect as if, for the words "Central Excise Officer", the words "Collector of Central Excise" and for the words "six months" the words "five years" were substituted. Explanation. - Where the service of the notice is stayed by an order of a court, the period of such stay shall be excluded in computing the aforesaid period of six months or five years, as the case may be. (2) The Central Excise Office shall, after considering the representation, if any, made by the person on whom notice is served under sub-section (1), determine the amount of duty of excise due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined. (3) For the purposes of this section, - (i) "refund", includes rebate of duty of excise on excisable goods ex....
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....isions workable, it became imperative to lay down monetary limits for powers of adjudication, of officers of different ranks; otherwise there would be an ambiguity and confusion, as under the changed law any Central Excise Officer could have adjudicated the matter without any limit. The Board's Circular No. 3/92-CX. 6, dated 14-5-1992 issued from File No. 208/26/92-CX. 6 has to be studied in this background. The Circular dated 14-5-1992 is extracted below :- Circular No. 3/92-CX. 6, dated 14-5-1992 [From F. No. 208/26/92-CX.6 Government of India Central Board of Excise & Customs New Delhi Subject : Powers of adjudication of officers of Central Excise - Provisions relating to appeals - Changes consequent to amendment of Central Excises & Salt Act in Finance Act, 1992 - Regarding. Reference to clause 116 of the Finance Bill 1992 which seeks to amend the provisions of Section 11A of the Central Excises and Salt Act. The Bill has received President's assent today. Consequent to this amendment the issue of laying down monetary limits for powers of adjudication of officers of different ranks has been examined by the Board and it has been decided to supersede all existing instruc....
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....nal Collectors also will not repeat will not henceforth issue demands answerable to them under proviso to Section 11A involving allegation of fraud, suppression etc. If any such demands have already been issued and made answerable to Additional Collectors, Collectors and Collectors (Judicial) may take over such cases, where orders have not been passed either on note sheet or as an order-in-original. 7. The implications of not following this Circular can well be imagined. There would have been confusion and uncertainty adversely affecting the administration of justice. In the case of Ranadey Micronutrients v. CCE - 1996 (87) E.L.T. 19 (S.C.), the Hon'ble Supreme Court had held that the circulars issued by the Central Board of Excise & Customs are to be treated to have been issued under Section 37B of the Act even when such provisions were not recited in the said Circular. Such Circulars were not advisory in character but were binding on the Central Excise Officers. Para-14 from that decision is extracted below :- "14. We reject the submission to the contrary made by ld. Counsel for the Revenue and in the affidavit by M.K. Gupta, working as Director in the Department of....
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....ority, the Asstt. Collector of Central Excise had adjudicated these cases beyond his competency and jurisdiction. 10. Having said so, we consider that justice has to be done in the matter. The demands were raised to secure Government's revenue pending decision on the Special Leave Petition filed by the Deptt. before the Hon'ble Supreme Court against the Tribunal's decision in the case of Calcutta Steel Industries & Ors. v. CCE - 1991 (54) E.L.T. 90 (Tribunal), classifying the impugned goods as bars, as against the Department's contention of treating them as flats. It is seen from the subsequent orders of the Dy. Commissioner of Central Excise, Ludhiana that the Department's special leave petition had been dismissed by the Hon'ble Supreme Court vide orders No. 168-331 dated 25-7-1995. The interests of justice are paramount and the course of justice could not be allowed to be thwarted by the indiscretion of the Asstt. Collector of Central Excise in this case (refer Umrah Khatoon v. Mohd. Zafir Khan - 1997 AIR SCW 1412). 11. The appellants have referred to the Tribunal's decisions in the case of (1) Commissioner of Central Excise, Jaipur v. Jaypee Agro Chemicals Ltd. - 19....