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TMI Blog2004 (1) TMI 422X X X X Extracts X X X X X X X X Extracts X X X X ..... able goods without registration and removal of the same without payment of duty. Hence, it has been contended that the Show Cause Notice dated 29-2-1988 issued by the Assistant Collector of Central Excise (Prev.), Bombay-III was without jurisdiction as in such cases, the demand notice was required to be issued by the Collector in view of the specific provision in proviso to Section 11A(1) of the Central Excise Act, 1944. As such, it has been contended that the impugned order confirming demand of duty passed in pursuance of the said Show Cause Notice issued without jurisdiction is required to be set aside. 2. It has been further urged on behalf of the appellants that since the Show Cause Notice for demand of duty as well as for confiscatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1944. We note that there is no provision under the Central Excise and Customs law which requires the Collector to issue the notice proposing confiscation or penalty. On a question from the Bench as to whether the proposal for confiscation and imposition of penalty made in the combined Show Cause Notice can survive despite notice for demand of duty having been issued by the Assistant Collector without having the jurisdiction to do so, our attention has been drawn to the decision of the Tribunal in the case of Alcobex Metals (P) Ltd. v. C.C.E. - 1992 (58) E.L.T. 108 (Tribunal). We find that the said decision has been reported as a five Member Bench decision but perusal of the same indicates that initially it was heard by a two Member Bench an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate so far as liability to confiscation of goods seized and imposition of penalty on the noticee is concerned. Imposition of penalty and redemption fine in lieu of confiscation, after liability to confiscation is upheld, is not related to the demand of duty, it is related to the value of the goods. Therefore, the subject of demand of duty is severable from the subjects of liability to confiscation of goods and plant and machinery and imposition of penalty on the noticee/appellant. [See 1983 (13) E.L.T. 1321 (S.C.) para 12 - Amba Lal v. U.O.I.]. The notice, therefore, is not liable to be struck down for the purpose of adjudicating the confiscation of goods, plant and machinery and imposition of penalty. The notice is, therefore, perfectly v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri I.J. Rao, learned Member (Technical). In addition, I would like to state that a show cause notice for recovery of duty and for confiscation and levy of penalty (which is the starting point of proceedings culminating in an order of adjudication) is a composite one and cannot be truncated so as to uphold that part of it which relates to confiscation and penalty while setting aside the part relating to demand of duty. 6. We do not find any view on this issue recorded by the 5th Member Shri G.P. Agarwal, Member (Judicial) in his order. However, the final order recorded by the two Members of the referring Bench has held as follows :- From the record, it is clear that, as to whether the show cause notice under reference was without ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relating to confiscation and imposition of penalty. We find that in the present case, non-duty paid shaving cream of Godrej brand was seized along with the Truck which was carrying the same. Subsequent search and investigation revealed clandestine manufacture and removal without payment of duty of such goods over a period of time. The law provides for recovery of duty in respect of goods cleared earlier as well as duty on the seized goods apart from confiscation of the seized goods, seized truck and imposition of penalty. The provision for demand of duty provides for two different time limits, one in normal case and the other in case of fraud, suppression etc. In respect of the latter, the law also requires the Collector to issue the notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t jurisdiction, the other part can survive having been issued by an officer having jurisdiction. Moreover, the said Section 124 codifying the principles of natural justice merely requires issue of a notice before confiscation and penalty are adjudged. We, therefore, are of the view that very cryptic orders, recorded by two Members in the case of Alcobex Metals without reference to the said Section 124, which form the basis of the ultimate order of the Tribunal in that case do not reflect the correct legal position. Therefore, we are of the opinion that the matter requires to be referred to a Larger Bench. We are also of the view that this issue requires to be resolved first before taking up the appeals for decision on merit. Accordingly, we ..... X X X X Extracts X X X X X X X X Extracts X X X X
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