2004 (9) TMI 598 - AT - Central Excise

Summary

Issues: Jurisdiction of issuing show cause notice under Central Excise Act.

Analysis:
The appeal was filed by the Revenue against the Order-in-Appeal passed by the Commissioner (Appeals). The Revenue argued that the show cause notice issued by the Deputy Commissioner under Rule 9(2) of the Central Excise Rules, along with Section 11A of the Central Excise Act, was valid. They contended that the Deputy Commissioner was the appropriate authority to issue the notice. However, the Commissioner (Appeals) held the notice as null and void, stating that the clearance of goods without payment of central excise duty and other violations required an officer not below the rank of the Additional Commissioner to issue the notice. The Revenue claimed that since the extended period was not invoked and there was no fraud or intent to evade duty, the Commissioner (Appeals) erred in setting aside the original authority's order based on jurisdiction.

The respondent's counsel argued that the show cause notice alleged clandestine removal of goods without accounting for them in statutory records and without paying central excise duty, indicating suppression of facts and contravention of the Central Excise Act with intent to evade duty. Therefore, they contended that the notice should have been issued by the Additional Commissioner, citing a relevant case law. The Tribunal carefully considered both arguments and found that the respondents did remove goods clandestinely to evade duty, necessitating the notice to be issued by the Additional Commissioner instead of the Deputy Commissioner.

Consequently, the Tribunal upheld the Commissioner (Appeals) decision that the show cause notice was invalid due to jurisdictional issues and dismissed the Revenue's appeal. The order was pronounced in open court on 21-9-2004.