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TMI Blog1998 (3) TMI 393X X X X Extracts X X X X X X X X Extracts X X X X ..... o the tune of Rs. 5,000/- in each case under Rule 173Q. 1.2 The respondents herein, being aggrieved with the said orders filed appeals before the lower appellate authority which, relying on Board s Circular No. 3/92-CX6, dated 14-5-1992 as interpreted by a Commissioner (Appeals) in his judgment reported in 1997 (91) E.L.T. 238, held that the Assistant Commissioner was not competent to impose penalty as also adjudicate a case involving duty amount exceeding Rs. 50,000/- interms of Note (b) of that Circular. Hence, that authority has remanded the matters to be decided by a competent authority. 2.1 It is against the aforesaid order that Revenue has filed the Appeals contending that lower appellate authority has misconstrued the Board s Cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cers in the hierarchy of the Central Excise officers. A breach of those instruction if any, cannot make an adjudication order illegal unless it contravenes provisions of the Central Excise Act or the rules made thereunder. 5.1 I have considered the pleas advanced by the Revenue. Ground taken in Revenue s appeal that the Circular, dated 14-5-1992 applies only to demand of duty under Section 11A and not to Rule 57-I is not tenable because Modvat credit of duty is after all duty on input; and the credit taken in RG 23A Part II is utilised for payment of duty on final product. If, therefore, the credit wrongly taken has been utilised and recovery thereof is ordered, it is an effect recovery of duty. It is not desirable to take such a highly t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also apparent, does not deal only with duty, although amount of duty has been made the criterion for differentiating the powers of different officers. It is apparent from note (b) to the effect that, confiscation of goods and levy of penalties will follow from above powers of adjudication based on merits of the case . 5.3 In view of the above discussion, I am clearly of the view that the circular applies to adjudication of show cause notice proposing demand of duty including reversal of Modvat credit, along with proposal regarding confiscation of goods or imposition of penalty. It also follows from Section 33 of the Central Excise Act, 1944 which lays down powers of adjudication on confiscation and penalties. 5.4 I am further of the op ..... X X X X Extracts X X X X X X X X Extracts X X X X
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