1989 (1) TMI 224 - AT - Central Excise

Summary

Issues Involved:

1. Jurisdiction of the Adjudicating Officer
2. Applicability of Rule 9(2) of the Central Excise Rules, 1944
3. Validity of the Show Cause Notice
4. Powers of the Collector under Section 11-A of the Central Excises and Salt Act, 1944

Detailed Analysis:

1. Jurisdiction of the Adjudicating Officer:

The primary issue raised by the appellant was the jurisdiction of the adjudicating officer. The appellant argued that under Section 11-A of the Central Excises and Salt Act, 1944, only the Assistant Collector had the authority to adjudicate matters where the extended period of limitation was invoked. The appellant contended that the show cause notice issued by the Superintendent of Central Excise directing them to show cause to the Collector of Central Excise was void and illegal. The appellant cited various legal precedents to support their argument that the adjudication by the Collector was without jurisdiction and thus null and void.

2. Applicability of Rule 9(2) of the Central Excise Rules, 1944:

The appellant argued that Rule 9(2) of the Central Excise Rules, 1944, which deals with the removal of excisable goods in contravention of sub-rule (1), was not applicable in their case as there was no clandestine removal of goods. They contended that the issue at hand was one of under-valuation and not clandestine removal, and therefore, Rule 9(2) should not be invoked. The appellant further argued that Rule 9(2) could not override the provisions of Section 11-A of the Central Excises and Salt Act, 1944.

3. Validity of the Show Cause Notice:

The appellant challenged the validity of the show cause notice on the grounds that it directed them to show cause to the Collector of Central Excise instead of the Assistant Collector, as required under Section 11-A of the Central Excises and Salt Act, 1944. They argued that this procedural irregularity rendered the show cause notice void and illegal. The appellant cited various judgments to support their contention that the show cause notice should have been issued by the proper officer and directed to the proper adjudicating authority.

4. Powers of the Collector under Section 11-A of the Central Excises and Salt Act, 1944:

The respondent countered the appellant's arguments by stating that the Collector had the authority to exercise the powers of any officer under the Central Excise Rules, 1944. They argued that Rule 6 of the Central Excise Rules allowed the Collector to perform all or any of the duties or exercise all or any of the powers assigned to an officer under these rules. The respondent cited various judgments to support their argument that the Collector could exercise the powers of the Assistant Collector and that the show cause notice and subsequent adjudication by the Collector were valid.

Conclusion:

The Tribunal, after considering the arguments from both sides, held that the Collector had the jurisdiction to adjudicate the matter. The Tribunal referred to previous judgments and legal provisions to support its decision. It was concluded that the incorporation of Section 11-A in Rule 9(2) was only to curb the limitation period and did not restrict the powers of the Collector. The Tribunal ordered the Registry to list the appeal for hearing on merits in the last week of March 1989, thus rejecting the preliminary objection raised by the appellant regarding jurisdiction.