2001 (8) TMI 745

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..... The facts of the case are that the appellant is a manufacturer of processed man-made fabric. Pursuant to information received by them, Central Excise Officers intercepted Van No. PB02F-7613 loaded with processed man-made fabrics of the appellant's factory. The Van was found to contain 96 pieces, measuring 7364.50 meters fabrics valued around Rs. 3 lakhs manufactured by the appellant. However, the Invoice No. 104 dated 18-06-1995 produced for the clearance of the goods by the appellant's employee (present in the Van) related only to 29 pieces of man-made Fabric measuring 1475 Meters. Thus, the Van was carrying about 5893.50 Meters more of fabrics than had been cleared on payment of duty. The Central Excise Authorities visited the appe....

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....tice had alleged that the appellant had "clandestinely removed 96 pcs. of processed man-made fabric". It is their contention that a notice relating to clandestine removal, inasmuch as allegation of clandestine removal is akin to the expressions (fraud, wilful mis-statement of facts etc) used in proviso to Section 11A of Central Excise Act, 1944, can be made only by the Commissioner of Central Excise. It has thus, been contended that the notice issued by the Assistant Collector is beyond jurisdiction and is required to be struck down. Reliance in this context has been placed on the order of this Tribunal in the case of Rubber Complex (India) Ltd. v. Commissioner of Central Excise, Kanpur [1999 (111) E.L.T. 716 (Trib.)]. 4. On the mer....

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....ted that fact. They had only put forth an explanation as to how mix-up between consignments had taken place. He, therefore, submitted that action under Rule 9(2) was fully justified. He therefore, submitted that the proceedings were within the competence of the Assistant Collector and there was no justification to treat the notice as issued under proviso to Section 11A, requiring the Commissioner to issue the notice. The learned DR contended that the statement regarding "clandestine removal" made in the notice was only by way of narration of the facts of the case. The learned DR emphasised that the demand in the present case having been issued within 6 month's period, the proceedings have no concern with the proviso to Section 11A of the Ce....

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....f the notice makes it clear that the notice was not issued under proviso to Section 11A. The use of the word "clandestine" was only incidental and not to bring the notice within the ambit of proviso to Section 11A. To treat the present notice as having been issued in terms of Proviso to Section 11A would be to overlook what the notice itself states and to read into it an intention to invoke proviso to Section 11A because of the mere presence of the word "clandestine" in the show cause notice. Such an interpretation of the notice would not be justified. This Tribunal's decision in the case of Rubber Complex India is not applicable to the facts of the present case. That decision was rendered in the peculiar facts of that case where several fa....