9911796707
TMI Blog1988 (6) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... 200 bundles. 2. The appellant is a manufacturer of matches under two brand names, "No. 16" brand and "We Two" brand. The appellant is admittedly a.middle sector unit not entitled to any concessional benefits in terms of Central Excise Notification 22/82, dated 23-2-1982. On 1-4-1986, the Central Excise Preventive Party visited the appellant's factory at Virudhunagarand scrutinised the Central Excise documents and made physical verification of the matches and bandroles in the factory. The authorities found that the appellant had kept 200 bundles of "No. 16" brand and, 500 bundles of "We Two" brand after clearance on payment of duty. The said goods were kept in the appellant's premises, because, according to the appellant, lorry was not ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred to supra, and, therefore, reference to the same in the show cause notice and inviting action on the ground is irrelevant. The learned Consultant further submitted that reference to Rule 63 for raising a demand for differential duty is mis-conceived'in law, since Rule 63 merely prescribes the number of sticks a box should contain with penal consequences oh a breach thereof. It was, therefore, contended that the show cause notice Itself is not legally valid and has been issued without proper application of mind vitiating the order of the original authority. It was further urged that the SuperinTendent has no power or jurisdiction or authority to adjudicate in respect of short levy, which would be covered by only Section 11A of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out payment of duty' 6. I have carefully considered the submissions made before me. The non-applicability of Rule 63 or Notification 22/82 in the present case is conceded even in the im-pugned order in favour of the appellant. The impugned order of the original authority has been passed by the Superintendent of Central Excise (Technical)-Though the Superintendent of Central Excise has issued the show cause notice and demanded differential duty by referring to breachof Rule63 and also non-applicability oWotifteation 22/82, dated 23.2.1982, the substance of the show cause.notice would reveal that differential duty was demanded (c)nty on the ground that consequent on the admittedi under-filling of matches in each raatch box the appellant woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o such notification has been relied upon in the order of the original authority though a specific contention was raised on behalf of the appellant in regard to his want of competence or authority and jurisdiction to adjudicate the matter. The scope and applicability of Section 11 A has also not been adverted to or considered. Therefore, With reference to the materials available on record and having regard to the wording of Section 11A of the Act, I am inclined to hold that in the absence of proof of any valid delegation of power by express notification envisaged by Section 37A(d) of the Act, referred to above, I hold that the impugned order of the original authority is without jurisdiction and incompetent. I, therefore, do not feel called u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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