1998 (12) TMI 543

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.... by an Asstt. Commissioner involving disallowance and recovery of Modvat credit in excess of Rs. 50,000/- can be saved on the strength of the provisions of Section 33 of the Central Excise Act, 1944 read with Notification No. 8-C.Ex., dated 2-9-1944 issued by the Central Board of Excise & Customs in terms of its statutory power conferred under the proviso to the said Section 33, empowering such Asstt. Commissioner to adjudicate cases 'without limit' as specified in clause (a) of Section 33 ibid? 2. Whether or not the provisions of Rule 57-I of the Central Excise Rules, 1944 and those of Section 11A of the C.E. Act, 1944 can be said to be identical per se? 3. Whether or not a departmental circular issued in specific reference....

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....nt to impose penalty as also adjudicate a case involving duty amount exceeding Rs. 50,000/- in terms of Note (b) of that Circular. Hence, that authority has remanded the matters to be decided by a competent authority. 2.1 It is against the aforesaid order that Revenue has filed this Appeals contending that lower appellate authority has misconstrued the Board's Circular (supra). It is submitted by Revenue that the said Circular does not apply to cases disallowing Modvat credit wrongly taken under Rule 57-I. The Circular applies to demands of duty under Section 11A and not to cases under Rule 57-I of the Central Excise Rules. In that view, penalty imposable under Rule 173Q(1)(bb) can also be imposed by the adjudicating authority. For ....

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.... had hitherto been exercising unlimited powers of adjudication being equal to "Collector" for the purposes of the Central Excise Act and Rules thereunder, were required to be given power of adjudication distinct and lower from that of "Collector". That appears to be the background for adjudication powers for different officers in the Central Excise hierarchy mentioned in the circular. The circular, it is also apparent, does not deal only with duty, although amount of duty has been made the criterion for differentiating the powers of different officers. It is apparent from Note (b) to the effect that, "confiscation of goods and levy of penalties will follow from above powers of adjudication based on merits of the case. 5.3 In view of....

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....e Act alone are taken into account, and the instant circular is ignored, then the Assistant Commissioner of Central Excise would have power of adjudication of confiscating the goods upto a value of Rs. 500/- and of imposing a penalty up to Rs. 250/- only under clause (b) of that section. Therefore, the Assistant Commissioner of Central Excise's jurisdiction in passing the Orders-in-Original cannot also be saved on the strength of the provisions of Section 33." 4. After having heard both sides, I have come to the conclusion that Question No. 1 does not arise out of the Tribunal's Order because the Notification No. 8-C.E., dated 2-9-1994 was not at all cited before the Bench by either side. I further observe that Section 33 of the Act....