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TMI Blog1997 (8) TMI 155X X X X Extracts X X X X X X X X Extracts X X X X ..... he Director of Anti Evasion to show cause why excise duty of Rs. 1,03,53,189.38 should not be demanded from them and why land, building, plant, machinery, material, etc. used in connection with the manufacture, storage and removal of office machines should not be confiscated and why penalty should not be imposed on them for contravention of various provisions of the Central Excise Rules. 3. The appellants in their reply to the show cause notice on 9th June, 1988 submitted that the show cause notice was invalid and void on the ground that the Director of Anti Evasion (DAE) was not competent to issue show cause notice; that the searches and seizure and recording of statement and panchnama by Officers of DAE was without any authority of law since these powers under the Act and Rules were not vested in the said authorities till the issue of Notification No. 215/86-C.E., dated 27-3-1986; that the Department's charges that the appellants had manufactured 1,535 machines was baseless and was not supported by many material; that there was no evidence to support the Department's presumption that the two units of the appellants had exceeded production value of Rs. 25 lakhs; that the ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tter was heard Shri Raghavan, Iyer, ld. Counsel appeared for the appellants and Shri M. Jayaraman, appeared for the respondents. 6. We have heard both the parties and perused the papers filed on behalf of the appellants. The first issue raised relates to the jurisdiction of the Director of Anti Evasion, (DAE), of the Directorate of Revenue Intelligence (DRI) of the Customs and Excise Department to issue the Show Cause Notice. The Department's contention is that by virtue of Notification No. 274/79-C.E., dated 10-11-1979 as amended, the Director of Anti Evasion (DAE) had the same powers as Collector and he could exercise the power of issuing Show Cause Notices as well as pass adjudication orders. The ld. Counsel for the appellants on the other hand has strongly urged that the notification did not confer jurisdiction on the officers of the Directorate of Revenue Intelligence or Anti Evasion. His further contention was that the territorial jurisdiction of Director of Anti Evasion cannot be equated with that of a Collector of Central Excise for the reason that while the Director of Anti Evasion had all India jurisdiction, a Collector enjoyed jurisdiction only within a State or an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o do so under law. During the submissions counsel for the appellants had relied on the Tribunal decision in Malhoo Miyan Yakub Miyan v. Collector of Central Excise - 1990 (49) E.L.T. 464 (Tribunal). In the said case a preliminary objection was taken as to the jurisdiction of "the Assistant Director, Directorate of Anti Evasion at the regional unit of the Department of Revenue Intelligence" to issue a Show Cause Notice. The Tribunal considered the submissions made on behalf of the Department in support of the maintainability of the adjudication order and the competence of the Assistant Director, Directorate of Anti Evasion to issue Show Cause Notice. It was argued for the Department that prior to the bifurcation of the Directorate of Anti Evasion from the Directorate of Revenue Intelligence, the Assistant Director, Anti Evasion was functioning as an administrative wing of Department of Revenue Intelligence. It was argued that powers vested in the Officers of the DRI should, therefore, be presumed to have been vested in the officers working in the DAE also. Since all officers of DAE were officers of DRI, the Department had, therefore, contended that when bifurcation took place, offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... slation like statutory notifications will take effect from the date of its publication, rejected the contention that a notification even though published in the official Gazette will not acquire operativeness and enforceability till it is made available to the persons for whom it was meant. However, nothing has been placed on record in the instant case to show that the said Notification became available to the public only after 10-8-1984. In view of the above, we do not find merit in the appellants' contention that the SCN was issued by an authority who had no jurisdiction to do so. 9. As regards the jurisdiction of the Director General of Anti Evasion to adjudicate the matter, according to Section 33, it is not in dispute that the Collector of Central Excise is the competent authority to adjudicate in all such matters referred to in the Section. Since DAE (who had subsequently been re-designated as `Director General Anti Evasion' (DGAE) was duly invested with the powers of Collector of Central Excise by virtue of Notification No. 191/84, dated 6-8-1984, it cannot be said that the DGAE had no jurisdiction to adjudicate the matter. We, therefore, find no merit on this point ei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any person as Central Excise Officer or to confer any of the powers conferred by the rules on such officers. The Act and the Rules thus follow the scheme envisaged in Section 2(b) of the Act and Rule 4 of the Rules. Notification No. 274/79 which has been issued in exercise of the powers under Section 2(b) and Rule 4 had appointed various officers of the DRI (which at that time included DAE as an administrative wing) investing them with all the powers exercisable by the various corresponding officers of Central Excise listed under Column (3) of the Table below the Notification. The mere fact that territorial jurisdiction of each DRI officer has not been mentioned therein does not make the appointments made under the Notification beyond the scope of the enabling powers conferred on CBEC under Section 2(b) and Rule 4. There is a clearly distinguishable delineation of the powers of each officer of the DRI referred to in Column (2) of the Table of the said Notification as each officer of DRI has been invested with powers of a corresponding officer of excise shown in Column (3) of the Table. Therefore, under the scheme of the said Notification (like all other similar notifications) the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anything repugnant in the subject or context. There is nothing in our view repugnant in the instant subject or context to take a different view. In fact it is the acceptance of the view canvassed which may result in repugnancy. 14. On merits the appellants had contended that the charge that amounts deposited by appellants in the Punjab & Sindh Bank and the Oriental Bank of Commerce in the name of the appellants were sales proceeds of goods clandestinely removed had not been proved. According to the appellants the allegation that 2174 numbers of photocopier machines had been removed without payment of excise duty had also not been established as the raw material accounts clearly showed that lenses purchased by appellants from M/s. Punjab Electro Optics Ltd. and Shri Amba Lal were utilised in the manufacture of copying machines. The appellants had also disputed the allegation that the machines despatched from the premises of Electro Photomax under Railway receipts during the period 1981-82, 1982-83 and 1983-84 were cleared without payment of duty. The appellants contended that the mere fact that the lenses purchased have not been shown in the raw material account could not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ufacturers which were clearly an after thought as the appellant have not been able to give the names and addresses of the small scale manufacturers from whom such machines and lenses were bought. Adjudicating officer had held that even assuming that some of the machines had been brought to the appellants' factory, the fact remains that the excisable commodity, namely, photocopying machines came into being as fully manufactured commodity only after extensive testing and adjustment in the noticee's premises. We do not find anything on record to controvert these findings of the adjudication officer. In view thereof we uphold the adjudication officer's findings on merits and confirm the duty demand of Rs. 95,17,592.48 . 17. However, since M/s. Electro Photomax is a proprietary concern, we consider the additional personal penalty of Rs. 50,000/- on Shri Gulshan Rai as legally impermissible. 18. On the basis of the above, we confirm the impugned order dated 31-7-1989 passed by the Director General of Anti Evasion subject to the modification that the personal penalty on Shri Gulshan Rai is dropped as not legally permissible. 19. Both appeals are disposed of in the above ..... X X X X Extracts X X X X X X X X Extracts X X X X
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