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TMI Blog2005 (3) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... ate submitted that a show cause notice dated 31-8-88 has been issued to the Appellants for demanding the Central Excise duty for the period from 1983-84 to 1986-1987 alleging the suppression of value by the Appellants; that during the relevant period only the Collector of Central Excise was authorized to issue a show cause notice invoking extended period of limitation; that in case of CCE, Indore v. Oil and Natural Gas Commission [1998 (103) E.L.T. 3 (Supreme Court)], the apex Court has held that when the show cause notice is issued within the ambit of the proviso to Section 11A(1) of the Central Excise Act, the show cause notice was required to be issued by Collector of Central Excise. 3. Countering the arguments, Shri S.M. Tata, learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, the power of the proper officer is conferred by the charging Section; that the charging Section for levy and collection of Central Excise duty is Section 3 of the Central Excise Act and the proper officer does not draw his power to initiate proceedings for recovery of escaped duty from Section 11A of the Act; that the power to recover duty which has escaped collection is a concomitant power arising out of levy of Central Excise duty under Section 3 of the Central Excise Act. 4. In reply the learned Advocate submitted that the definition of the Collector at the relevant time was not given in the Central Excise Act; that the term Collector was only defined in Central Excise Rules, 1944 and that definition was meant only for the purp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nion of India v. Madhumillan Syntex Pvt. Ltd. - 1988 (35) E.L.T. 349 (S.C.), a show cause notice before demanding any Central Excise duty is a must. 5. We have considered the submissions of both the sides. During the relevant period when the show cause notice was issued, it was the requirement of the Proviso to Section 11A(1) of the Central Excise Act that the show cause notice for demanding the Central Excise duty not levied or short levied etc., by reason of fraud, collusion etc., has to be issued by Collector of Central Excise. No doubt as per Rule 2 of the Central Excise Rules, 1944 Collector includes Additional Collector but this definition was only for the Rules only. This definition can not be brought into effect for the purpose of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 12, Section 17, Section 28 and Section 142, that cumulative reading of these provisions clearly shows that jurisdiction of a proper officer to initiate proceedings which has escaped collection is not traceable to Section 28. Further, the Supreme Court in Virgo Steels case has held that the law laid down by the Supreme Court in CC, Calcutta v. Tin Plate Co. of India Ltd. [1996 (87) E.L.T. 589 (S.C.)] is that issue of a notice under Section 28 is a mandatory requirement of that Section with which the Supreme Court was in agreement. In view of this and decision of the Supreme Court in Madhumillan Syntex Pvt. Ltd. case, we hold that issue of a notice under Section 11A(1) of the Central Excise Act is a condition pre-requisite before any dem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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