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TMI Blog2015 (6) TMI 299X X X X Extracts X X X X X X X X Extracts X X X X ..... w from the one taken by it in an appeal filed by the same assessee on 17-10-2000 in the case of Bharat Heavy Electricals Ltd. v. Commissioner of Central Excise, Indore (2000 (10) TMI 374 - CEGAT, NEW DELHI). Once it is found that the show cause notice is issued by an unauthorized person, we have to hold that the entire action initiated is unsustainable, void ab initio and stands vitiated. - Superintendent could not issue the show cause notice in relation to the recovery of Modvat credit after disallowing it and it was only the Assistant Collector or Collector who could issue the notice. Whether the Tribunal is justified in arriving at the conclusion that the department’s circulars have no legal sanctity as they have not been issued in accordance with Rule 33 of the Rules - When a departmental circular is issued by the Board, it would be in accordance to the power available to the Board under Section 37B and until and unless it is not shown that the circular is contrary to any law laid down by the Supreme Court or judgment of High Court, the same shall be binding on all the officers of the Excise Department and only on the ground that the circular is not issued under Rule 233 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 87-Jan.88 ₹ 11,12,341/- 9/2003 11-7-1990 Feb. 89-Feb.90 ₹ 62,48,190/- 10/2003 13-2-1992 Nov. 91-Dec.91 ₹ 8,88,543/- 11/2003 28-11-1991 Apr. 90-May.91 ₹ 3,69,835/- All these notices were issued by the Superintendent, Central Excise and as objections with regard to the same were rejected, appeals were filed, which were also dismissed by the Tribunal, hence these references. 5. Having appreciated facts of the case we find that two questions of law arises for consideration as has been detailed above. 6. The first question is as to whether the Tribunal was justified in holding that the department s circulars issued giving powers to issue show cause notice under Rule 57-I of the Central Excise Rules, 1944 (hereinafter referred to as Rules for short) to the Assistant Collector and Collector can be given effect to the same being executive and advisory in nature and not issued under the provision of Rule 233 (wrongly mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the circulars are issued by the Board under Section 37B and merely because the circular does not recite so, it does not mean that they do not bind the departmental officers. It has also been held by the Supreme Court in the aforesaid case that it is the Central Board, which is statutorily entrusted with the task of classifying excisable goods uniformly and the circulars issued by the Board are binding on the departmental officers. It is held in this case that even if the circular is found to be inconsistent to the statutory provision, for the purpose of maintaining consistency, uniformity in imposition of duty and discipline in the department these circulars should be followed by the departmental officers. Thereafter this judgment has been followed by the Supreme Court again in the case of Collector of Central Excise, Patna v. Usha Martin Industries - 1997 (94) E.L.T. 460 (S.C.) and it has been held that the circular issued by the Board are binding on the departmental authorities. Similar is the view taken by the Supreme Court in the case of Paper Products Ltd. v. Commissioner of Central Excise - 1999 (112) E.L.T. 765 (S.C.). 9. In the meanwhile, even though in the case of Col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ental authorities are duty bound to follow the circular. Even though in the statutory circular issued by the department on 12-5-1987 initially, the Superintendent, Central Excise was declared as the proper officer to take action under Rule 57-I, but this circular has further been clarified on 8-9-1987 and finally on 15-12-1987 and with regard to taking action and for issuing of notice under Rule 57-I(i), after considering the provision of law and the judgment of Supreme Court in the case of Pahwa Chemicals Pvt. Ltd. v. Commissioner of Central Excise, Delhi - 2005 (181) E.L.T. 339 (S.C.), it has to be held that for the purpose of issuing show cause notice and taking action under Rule 57-I, it is the Assistant Collector and Collector who are authorized to take action and in the light of the Circular dated 15-12-1987, we find that the order passed by the Tribunal is unsustainable. It is not known as to how the Tribunal could take a different view from the one taken by it in an appeal filed by the same assessee on 17-10-2000 in the case of Bharat Heavy Electricals Ltd. v. Commissioner of Central Excise, Indore (supra). Once it is found that the show cause notice is issued by an unautho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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