2004 (6) TMI 110 - AT - Central Excise

Summary

Issues:
1. Competency of the officer issuing show cause notices under Rule 96ZP of the Central Excise Rules.
2. Imposition of penalty and interest under sub-rule 1(A) of Rule 96ZP when duty was demanded under sub-rule (3) of Rule 96ZP.

Analysis:

Competency of the officer issuing show cause notices under Rule 96ZP:
The appeal challenged an order-in-appeal affirming the duty demand confirmed by the Additional Commissioner. The appellant disputed the validity of the order mainly on grounds that the show cause notices demanding duty under Rule 96ZP(3) were not issued by a competent officer. The Superintendent issued the show cause notices, which were answerable to the Additional Commissioner and Joint Commissioner, contrary to the Board's Circular. The Tribunal held that the Superintendent was not competent to issue these notices as per the Circular, rendering the proceedings vitiated. Citing precedents, the Tribunal emphasized the importance of adherence to authorized officers for issuing show cause notices, ultimately setting aside the impugned order on this ground alone.

Imposition of penalty and interest under sub-rule 1(A) of Rule 96ZP:
When the demand for differential duty was raised under sub-rule (3) of Rule 96ZP, the penalty should have been imposed as provided therein. However, the adjudicating authority imposed the penalty under sub-rule 1(A) of Rule 96ZP, which was not invoked for raising the duty demand. The Commissioner (Appeals) wrongly affirmed the penalty through the impugned order. The Tribunal highlighted that penalty and interest could only be imposed under the relevant sub-rule when confirming the duty demand. Citing a legal precedent, the Tribunal clarified that the imposition of penalty under the correct sub-rule was mandatory in case of default in duty payment, which was not the situation in this case. Consequently, the Tribunal set aside the impugned order and allowed the appeal of the appellants with any consequential relief permissible under the law.