Central Excise - Cases relating to cigarette companies - Modalities to be followed in revising Show Cause Notices/demanding lesser amounts of duty than what is demanded in Show Cause Notices - Instructions regarding - Central Excise - 38/90-CX.3

Central Excise - Cases relating to cigarette companies - Modalities to be followed in revising Show Cause Notices/demanding lesser amounts of duty than what is demanded in Show Cause Notices - Instructions regarding Circular No. 38/90-CX.3 Dated 19-7-1990 [From F. No. 81/65/87-CX.3(Pt.)] Government of India Ministry of Finance (Department of Revenue) Central Board of Excise Customs, New Delhi Subject : Central Excise - Cases relating to cigarette companies - Modalities to be followed in revising Show Cause Notices/demanding lesser amounts of duty than what is demanded in Show Cause Notices - Instructions regarding . Reference instructions contained in Board's F. No. 81/65/87-CX.3(Pt.), dated 2-11-1989 and to say that doubts have been expressed regarding the exact modalities to be followed in implementing the instructions contained therein. In Board's letter referred to above, the opinion given by the Attorney General of India regarding applicability of slab rates of duties in terms of Notification No. 201/85-C.E., dated 2-9-1985, as amended, in the event of, contravention of the provisions of that Notification had been communicated with the directions to take necessary appropriate action. The effect of the opinion given by the Attorney General of India was to demand duty from cigarette companies, which had sold the cigarettes at prices higher than the declared price in contravention of the provisions of Notification No. 201/85-C.E., dated 2-9-1985, as amended, by applying the next slab rates of duties corresponding to the actual sale prices. These instructions which were contained in Board's F.No. 81/65/87-CX.3(Pt.), dated 2-11-1989 had superseded the instructions contained in Board's earlier references of even number dated 5-10-1988 and 22-6-1989 wherein, instructions had been issued for revising the show cause notices by applying the tariff rates. The A.G.'s opinion has further necessitated the revision of the SCNs. 2. The matter has been examined in consultation with the Law Ministry. The Law Ministry has taken note of Section 11A of the Central Excise and Salt Act, 1944 according to which the Assistant Collector of Central Excise shall, after considering the representation, if any, made by the person on whom notice is served under sub-section (1), determine the amount of duty of excise due from such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined. This sub-section contemplates considering the representation, if any, made and determine the amount of duty of excise due from such person. Therefore, what has to be determined is the amount of duty due from the person upon whom the notice has been served. This has not to be in excess of the amount specified in the notice. This indicates that, if the amount of duty of excise due from such person is less than the amount specified in the notice, it is open to the Assistant Collector to determine the lesser amount. This may not require a formal amendment in the notice. It is open to the Assistant Collector to bear this provision in mind also. 3. The above clarification may be brought to the lower field formations. 4. Board desires that all pending show cause notices in such cases may be disposed of in the light of the Law Ministry's instructions referred to in Para 2 above.