TaxTMI 
TaxTMI 
2015 (6) TMI 299
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....ing of four appeals, all these four references are being disposed of by this common order and for the sake of convenience the documents and pleadings available in C.E.R. No. 8/2003 is being referred to in this order. 2. The questions of law formulated in the cases read as under :- "1. Whether the Tribunal is justified in negativating the contention raised by the assessee that in the obtaining factual matrix the Superintendent of Central Excise could have issued the notice to show cause in relation to excess availability of Modvat credit by the assessee or it was either the Assistant Commissioner or the Collector Central Excise in the case at hand? 2. Whether the Tribunal is justi....
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....istant Collector and Collector can be given effect to the same being executive and advisory in nature and not issued under the provision of Rule 233 (wrongly mentioned as 33 in the question of law framed) of the Rules. It would be seen that initially the circular was issued by the Department on 12-5-1987 designating "proper officers" entitled to take action under the Rules. In the Annexure to this circular the Superintendent Central Excise was indicated as the "proper officer" for issuing notice and taking action under Rule 57-I. However subsequently another administrative circular was issued on 15-12-1987 in the matter of issuing show cause notice under Rule 57-I(i) for disallowing Modvat credit wrongly availed of and in this circular it w....
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....as has been done in the present case. The question of a departmental circulars' effect and its binding nature on the officers of the Department has been considered in various cases and in the case of Ranadey Micronutrients v. Collector of Central Excise - 1996 (87) E.L.T. 19 (S.C.) it has been held by Hon'ble Supreme Court that the circulars are issued by the Board under Section 37B and merely because the circular does not recite so, it does not mean that they do not bind the departmental officers. It has also been held by the Supreme Court in the aforesaid case that it is the Central Board, which is statutorily entrusted with the task of classifying excisable goods uniformly and the circulars issued by the Board are binding on the departme....
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....r High Court the decision of the court shall be binding on the department and not the circular. If the judgments cited by the learned counsel for parties in this regard along with the written submission are taken note of it can be safely construed by us that when a circular is issued by the Board it is binding on the officers of the department and they cannot refuse to follow the same on the garb of same being an administrative circular, advisory in nature and not binding in fact the law is that such circulars are binding on the officers of the department, even if not issued under the statutory provision, in all the cases cited before us various aspects of the matter have been taken note of and principles of law which can be derived from th....
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.... - 2005 (181) E.L.T. 339 (S.C.), it has to be held that for the purpose of issuing show cause notice and taking action under Rule 57-I, it is the Assistant Collector and Collector who are authorized to take action and in the light of the Circular dated 15-12-1987, we find that the order passed by the Tribunal is unsustainable. It is not known as to how the Tribunal could take a different view from the one taken by it in an appeal filed by the same assessee on 17-10-2000 in the case of Bharat Heavy Electricals Ltd. v. Commissioner of Central Excise, Indore (supra). Once it is found that the show cause notice is issued by an unauthorized person, we have to hold that the entire action initiated is unsustainable, void ab initio and stands vitia....