2010 (12) TMI 421 - HC - Central Excise

Demand - Notice under Section 11A of the Act can only be issued by the Collector of Central Excise - The word Collector Central Excise has been substituted by the word Central Excise Officer . The Central Excise Officer has also been defined in sub-section (B) of Section 2 of the Act - n the present case a notice has been issued by the Assistant Commissioner Central Excise and the case has been decided by the Dy. Commissioner Central Excise. Both of them were competent officers - In view of this there is no illegality in issuing the notice or deciding the case under the Act - Decided against the assessee

Summary

Issues: Jurisdiction of issuing show cause notice under Section 11A of the Central Excise Act, 1944 by Assistant Commissioner, and validity of order passed by Dy. Commissioner.

In this case, an intelligence report alleged the assessee's involvement in the clandestine removal of goods without payment of duty under the Central Excise Act, 1944. Subsequently, an inspection led to a notice under Section 11A issued by the Assistant Commissioner, seeking explanation for duty evasion and imposing penalties for rule violations. The Dy. Commissioner confirmed the dues and imposed a penalty. The assessee's appeal was dismissed, leading to a second appeal before the Tribunal.

The Tribunal allowed the appeal, stating that the notice under Section 11A alleging clandestine removal should have been issued by the Collector, not the Assistant Commissioner. The Department then approached the High Court under Section 35G, resulting in two questions referred to the court regarding the jurisdiction of the Assistant Commissioner's notice and the Tribunal's decision without considering the notice's contents.

The High Court clarified that the Act's amendment allowed notices under Section 11A to be issued by Central Excise Officers, including the Assistant Commissioner and Dy. Commissioner. Thus, in this case, the notice and decision were validly issued by competent officers, rejecting the Tribunal's view. The High Court answered both questions in favor of the Department, directing the Tribunal to decide the case based on the clarified jurisdiction.

Additionally, the High Court noted that the Tribunal had not decided the case on its merits, leaving it open for the Tribunal to evaluate the appellant's case thoroughly and issue appropriate orders. The reference was answered with these observations, emphasizing the need for a comprehensive review of the case on its merits by the Tribunal.