9911796707
TMI Blog1994 (4) TMI 141X X X X Extracts X X X X X X X X Extracts X X X X ..... l Rs. 93,787.52) on account of wrong availment of proforma credit, which was not admissible during the material period and consequently confirm the duty demand for this amount. I vacate the duty demand for Rs. 3,275.30 (Basic Excise Duty 3206.00 and Special Excise Duty 69.30) which had become time barred by the time the demand had been raised. 2. Briefly stated the facts of the case are that M/s. National Steel Rolling Mills, the appellant in this case, are manufacturers of iron and steel products and utilised proforma credit of duty paid on inputs. During the period from March, 1988 to February, 1989 they were not entitled to avail proforma credit under Rule 56A as this facility was not available on iron and steel products in terms ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anded duty amounting to Rs. 97,062.82 as wrongly taken credit under Section 11A of Central Excises and Salt Act without proposing any penal action against the appellant under Rule 173Q of the Central Excise Rules, 1944; that the charge of suppression of facts, mis-statement and fraud was brought in for the first time against the appellant in the show cause notice issued by the Addl. Collector; that the power of demanding duty or recovering the amount has been conferred upon the Asstt. Collector as per the sub-rule (5) of Rule 56A and not on the Addl. Collector; that the appellant has been deprived of one stage of appeal inasmuch as the appeal against the order of Asstt. Collector lies with the Appellate Tribunal; that in the appellant s cla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the rules, the Addl. Collector was perfectly within his rights to adjudicate the case; that before adjudication the appellant was given an opportunity and a notice that the cause should be shown to the Addl. Collector and not to the Asstt. Collector was issued. Reiterating the findings of the lower authorities, the ld. JDR submitted that the impugned order was valid and legal. 5. Heard the submissions of both sides and considered them. I find that the Collector (Appeals) had under Order-in-Appeal No. 414-CE/CHG/89 dated 10-11-1989 ordered : I have carefully considered the submissions made by the appellant. I find that the appellants have taken a new plea of time bar as well as that of filing declaration on 1-3-1988 at the stag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e instant case, I find that the direction in the order of remand was to the Asstt. Collector to examine the two issues namely the question of time bar and the question of filing a declaration on 1-3-1988. It was, therefore, the Asstt. Collector who was required to examine the issues. Agreeing with the ratio of the judgement of the Tribunal cited supra, I find that the Addl. Collector had no jurisdiction in the case to take up the case himself for adjudication, issue a fresh show cause notice adding some more points and therefore the impugned order is not sustainable in law. The impugned order is set aside and the appeal is allowed. However, the order of remand by the Collector (Appeals is still valid and has to be decided by the Asstt. Coll ..... X X X X Extracts X X X X X X X X Extracts X X X X
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