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TMI Blog2011 (2) TMI 184X X X X Extracts X X X X X X X X Extracts X X X X ..... The notice and the orders are not invalid for the reasons that the sub-rules of Rule 25 of the Rules were not mentioned - Decided in the favour of revenue - 232 of 2009 - - - Dated:- 25-2-2011 - Yatindra Singh and Prakash Krishna, JJ. [Order]. The main question involved in this appeal is, Whether a show cause notice and the orders passed on its basis can be quashed for a defect in the notice without there being any prejudice to the affected party . The Facts 2. M/s. Raghunath International Ltd. (the Assesee) is engaged in manufacture of, Paan Masala (chapter sub-heading number 2106 and 2108.99); Paan Masala containing tobacco (chapter sub-heading 2404.49); Branded chewing tobacco (chapter sub-heading 2404.41); and Meeth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ower under Section 33 of the Act; (ii) Whether the Central Board of Excise and Customs (the Board) can delegate the power under Section 33 of the Act by a circular; (iii) Whether the impugned orders are liable to be set aside on the ground that neither in the notice, nor in the order sub-rules of the Rule 25 of the Excise Rules, 1944 (the Rules) have been mentioned. 1st Point : Joint Commissioner could exercise powers 8. Section 33 of the Act is titled Power of adjudication and provides the following limits for the officers : Clause (a) of Section 33 {Section 33(a)} provides unlimited powers to the Commissioner of Central Excise; Clause (b) of Section 33 {Section 33(b)} provides limits for the Assistant Commissioner and D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the order. 14. The counsel for the Assessee has brought to our notice the notifications dated 6-11-1948 and 28-11-1959 and submitted that : Earlier, the power under section 33 of the Act was conferred by the notifications as it could only be conferred by a notification; The power could not be conferred by a circular; The Circular is illegal. 15. The Act provides, what can be done by framing rules (Section 37); or by issuing notifications (Section 37A); or by giving instructions or directions (Section 38B). However, Section 33 has no such limitation. 16. Section 33 does not provide any restriction as to how the power is to be conferred. No other provision has been brought to our notice providing restriction for conferring power ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Amrit case. 21. In the present case, the show cause notice is on the record. The sub-rule of Rule 25 of the Rules that is said to be contravened is not mentioned though Rule 25 is mentioned. However, it contains the necessary ingredients of sub-rule 25(a), (b) and (d). It also indicates the evidence on the basis of which those ingredients are proved and the penalty that might be imposed. 22. In this case, no objection was taken against the notice. The objection was also not taken before the Commissioner (Appeals). It was taken for the first time before the Tribunal. Had it been taken at the first instance then, the mistake could have been corrected. In these circumstances, the objection could not be entertained by the Tribunal. 23. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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