9911796707
TMI Blog1989 (11) TMI 186X X X X Extracts X X X X X X X X Extracts X X X X ..... same is not appealed against in the present appeal. 2. Shri K. Narayanan, the learned counsel for the appellant submitted that the appellant received Copper Winding Wires as an input for the manufacture of transformers by availing of MODVAT credit. Initially the supplier of the input in question has not paid duty on that and subsequently the supplier paid the duty in regard to the input in question and consequently the appellant took credit for the duty suffered by the input at the hands of the appellant s suppliers. The appellant took credit for a sum of Rs. 1,41,516.46 on 12th June, 1986 under due intimation to the Central Excise Department and with the permission of the Superintendent of Central Excise concerned. This credit relates t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ific direction to appeal to Asst. Collector, if disagreed. As such, the impugned order of Asst. Collector is passed without a show cause notice and such order is neither correct nor maintainable as has been held by Honourable Madhya Pradesh High Court in Miscellaneous Petition No. 264/87 decided on 7-9-1987 [Reported in 1988 (17) ECR P. 453 (M.P.)]. As such, the order of the Asst. Collector is set aside and the appeal is allowed." Subsequent to the order of the appellate authority in terms extracted above, the Supdt. of Central Excise raised a demand by a notice dated 23-2-1989. The demand was made by the Supdt. on the basis of the following observation of the Collector (Appeals) in the impugned order which reads as under: No order is pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arified that in respect of disallowing Modvat credit wrongly availed under Rule 571(1) of the Central Excise Rules, 1944 giving a show cause notice is mandatory and that the competent officer to decide the show cause notice for disallowing the Modvat credit is the Asst. Collector of Central Excise. Copy of Letter F. No. 267/104/87-CX. 8, dated 15-12-1987. Sub:- Central Excise - Recovery of Modvat credit wrongly - availed whether show cause notice is to be issued - who are the officers competent to adjudicate Modvat cases - 571(i) vis-a-vis 11A - Clarification - reg. The undersigned is directed to invite attention to Point No. 5 of the Minutes of the Meeting of North Zone Collectors Conference held at Delhi on 13th and 14th October, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed at (ii) above, it has been decided that all show cause notices issued for disallowing Modvat credit would be decided by the Asst. Collector. However, in cases where Modvat credit is wrongly availed with an intent to evade excise duty, the show cause notices will have to be issued invoking penal provisions and decided by Collector....." The learned counsel, therefore, contended that when clarification from the Government of India, as accepted by the Central Board of Excise and Customs, was very much inexistence even on 15-12-1987, the so-called demand-cum-notice of the Supdt. dated 13-1-1988 is totally without jurisdiction ab initio void. The learned counsel further contended that the non est or void nature of a particular order or com ..... X X X X Extracts X X X X X X X X Extracts X X X X
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