issuance of SCN by lower authority, Central Excise

[Alkesh Jani]

Sir, Please let me know that if a SCN has been issued by lower authority or in violation to the Circular. For example The Superintendent issued SCN with regards to classification of goods or exemption Notification. Then what.

Does SCN becomes viod or is legally tenable?

Thanks in advance

Posts / Replies

[Rajagopalan Ranganathan]

Sir,

Under erstwhile Central Excise Law show cause notices should be issued by an officer competent to adjudicate the matter. Therefore show cause Notice issued by an officer lower in rank to the adjudicating authority is ab initio void. This nis my view.

Wrong citation of provisions of the Act or rules made thereunder will not invalidate the show cause notice.

[KASTURI SETHI]

2015 (318) E.L.T. 456 (Tri. - Chennai) = 2014 (11) TMI 748 - CESTAT CHENNAI SHS ELECTRONICS Versus COMMISSIONER OF C. EX., COIMBATORE

[Alkesh Jani]

Sir,

Thanks a lot my your valuable views.

With regards,

[Rajagopalan Ranganathan]

Sir,

The CESTAT has passed the order on the strength of Supreme Court's decision in Easeland Combines case [2003 (152) ELT 39 (S.C.). =  2003 (1) TMI 107 - SUPREME COURT OF INDIA But the ratio of this decision had been doubted by Supreme Court itself in ITW SIGNODE INDIA LTD. Versus COLLECTOR OF CENTRAL EXCISE [2003 (153) E.L.T. 501 (S.C.)] =  2003 (2) TMI 75 - SUPREME COURT OF INDIA and in ITW SIGNODE INDIA LTD. Versus COLLECTOR OF CENTRAL EXCISE[2003 (158) E.L.T. 403 (S.C.) = 2003 (11) TMI 114 - SUPREME COURT OF INDIA (Three Member Bench)].

Therefore, in my opinon, you can agitate the issue before the Adjudicating Authority/Appellate authority since CESTAT decision in SHS ELECTRONICS Versus COMMISSIONER OF C. EX., COIMBATORE = 2014 (11) TMI 748 - CESTAT CHENNAI is not a binding precedent.

 

[KASTURI SETHI]

There are conflicting judgements on the issue. Better option is to fight the case on merits. I mean to say on the basis of "How goods are classifiable in such Chapter/Heading/Subheadings/HSN" rather one the basis of jurisdiction. Any adjudicating officer (Central Excise Officer) adjudicates the case on behalf of Commissioner. So such like arrangement for adjudication is an internal administrative mechnaism of the the department. In litigation on the basis of jurisdiction case can go anyway. So first point should be classification second jurisdiction. Emphasis should be on classification.

[KASTURI SETHI]

Sometimes Commissioner accords written permission in file to lower authority to issue SCN. That has also legal validity. What is important is that case should be adjudicated by the Competent Authority. There is no dearth of legal luminaries in the department. Moreover, in case SCN is issued by lower authority, that does not belittle the gravity of the offence. Suppose a huge amount is involved in this SCN, Govt. will not allow the assessee to go scot free on the ground of jurisdiction at any cost. Case laws are in both ways.

[Himansu Sekhar]

Issuance of SCN by the lower authorities which were to be issued by the superior officers, is not violative of the Central Excise law. Kindly refer to the decision of Hon'ble Supreme Court in the case of M/s Aeon Construction. (three member Bench). Another decision of the Apex Court I shall cite on the same ground. The matter has been illustratively described.

[KASTURI SETHI]

Sh.Himamsu Sekhar Ji,

I have gone through this judgment thoroughly. Issue stands settled with your efforts. Conflicting judgements are at CESTAT level only.

Thanks for your hard work to trace out.

[Himansu Sekhar]

Thank you Sir. Another decision of the Hon'ble Apex Court I will cite very soon.

[YAGAY AND SUN]

Nice discussion.

[DR.MARIAPPAN GOVINDARAJAN]

If the show cause notice is issued by the incompetent authority, objection may be raised in the reply. If there is emergency the assessee may invoke writ jurisdiction to set aside the show cause notice on the ground of jurisdiction.