TaxTMI 
TaxTMI 
2005 (2) TMI 136
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....eging that they were not entitled to the benefit of the Notifications as they were using the logo of "ATR" belonging to one M/s. ATR St. Moritz A.G., Switzerland. Duty and penalty was demanded from them for having suppressed the facts and non-payment of duty. The Appellants replied to the notices. However, the Deputy Commissioner confirmed the demand of Rs. 26,74,875.75 and imposed a penalty of Rs. 26,00,000/-. 3. The Appellants filed an Appeal before the Commissioner of Central Excise (Appeals). They inter alia contended that, as suppression has been alleged, the Superintendent who had issued the show cause notices was not competent to issue the show cause notices and the Deputy Commissioner was not competent to adjudicate. The Commissioner (Appeals) upheld the contention that the show cause notices were wrongly issued and had been wrongly adjudicated by the Deputy Commissioner in excess of powers vested in him by the Central Board of Central Excise (for short 'Board'). The Commissioner (Appeals) remitted the matter back with the following directions :- "I. If the matter does not really merit invocation of suppression of facts, wilful misstatement, etc.....
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....7th October, 2000 that the Appellants are not entitled to the benefit of the Notifications. Against that Order Civil Appeal No. 4050 of 2001 is pending before this Court. 7. In order to consider this point it is necessary to see the relevant provisions. 8. Section 11A, as it stood, prior to 14th May, 1992 reads as follows : "SECTION 11A. Recovery of duties not levied or not paid or short-levied or short-paid or erroneously refunded. - (1) When any duty of excise has not been levied or paid or has been short-levied or short-paid or erroneously refunded, a Central Excise Officer may, within six months from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice : Provided that where any duty of excise has not 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 thereunde....
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.... itself laid down a requirement, it has been held, in a number of authorities, that a show cause notice issued and/or adjudication done by an officer below the rank of a Collector would be invalid as such an officer had no jurisdiction. 9. With effect from 14th May, 1992 Section 11A was amended and the word "Collector" was deleted and the words "Central Excise Officer" were incorporated. Thus, the Legislature purposely and knowingly made a change whereby it was no longer required that where allegations of fraud, collusion, wilful misstatement or suppression of facts are made, a Collector should issue a show cause notice or adjudicate the same. Now a Central Excise Officer also has the jurisdiction. 10. Section 2(b) of the Act defines a "Central Excise Officer" as follows : "2(b). "Central Excise Officer" means the Chief Commissioner of Central Excise, Commissioner of Central Excise, Commissioner of Central Excise (Appeals), Additional Commissioner of Central Excise, Deputy Commissioner of Central Excise, Assistant Commissioner of Central Excise or any other officer of the Central Excise Department, or any person (including an officer of the State Government) invested by the Ce....
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....ated by :- (Amt. of duty involved) Commissioners - Without limit Addl. Commissioners - Up to Rs. 10 lakhs (B) In respect of cases which do not fall under the category (A) above, will be adjudicated by :- (Amt. of duty involved) Commissioners - Without limit Addl. Commissioners/ - Above Rs. 2 lakhs Dy. Commissioners And up to Rs. 10 lakhs Assistant Commissioner - Upto Rs. 2 lakhs Notwithstanding the powers of Assistant Commissioners to adjudicate the cases involving duty amount up to Rs. 2 lakhs only as above, all cases of determination of valuation and/or classification other than those covered under Category (A) above, will be adjudicated by the Assistant Commissioners without any limit as hitherto, as also Modvat disputes, other than those at category (A) above. (C) Cases related to issues mentioned under first proviso to Section 35B(1) of Central Excise Act, 1944 would be adjudicated by the Addl. Commissioners/Dy. Commissioners without any monetary limit, as was the position under Board's Circular No. 13/93-CX., dated 15th October, 1993. 4. The value of goods/conveyance, plants, machinery and building etc., liable to confiscation will not alter a....
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....g reliance upon these two Circulars and submit that by virtue of these Circulars the Superintendent had no jurisdiction to issue the show cause notices and that the Deputy Commissioner had no jurisdiction to adjudicate. 12. As noted above, the Legislature has purposely omitted the word "Collector" from the proviso to Section 11A and replaced it with the words "Central Excise Officer". It is the Act which confers jurisdiction on the concerned Officer/s. The Act permits any Central Excise Officer to issue the show cause notices even in cases where there are allegations of fraud, collusion, wilful misstatement and suppression of facts. The question therefore is : Can the Board override the provisions of the Act by issuing directions in the manner in which it is done and if the Board cannot do so then what is the effect of such Circulars? 13. In order to consider the powers of the Board one needs to see certain provisions of the Act. Section 2(b) defines the "Central Excise Officer" and it is mentioned therein that any Officer of the Central Excise Department or any person who has been invested by the Board with any of the powers of the Central Excise Officer would be a Central Exc....