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TMI Blog2005 (2) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... ason to interfere. The Appeals stand dismissed - 2350 of 2002 - - - Dated:- 24-2-2005 - S.N. Variava, Dr. A.R. Lakshmanan and S.H. Kapadia, JJ. [Judgment per : S.N. Variava, J.]. - Civil Appeal No. 2350 is filed against the Judgment dated 19th July, 2001 passed by the Customs, Excise Gold (Control) Appellate Tribunal (for short 'CEGAT') and Civil Appeal No. 406 of 2004 is filed against the Judgment dated 25th June, 2003 passed by CEGAT. Both these Appeals can be disposed off by this common Judgment as the parties are the same and the question involved is the same. 2. Briefly stated the facts are as follows : The Appellants are engaged in manufacture of Textile Printing Adhesives falling under Chapter Heading No. 3402 of the Central Excise Tariff Act, 1985. The Appellants were claiming benefit of Notification No. 1 of 1993 as amended and Notification No. 16 of 1997. Show cause notices were issued to them alleging that they were not entitled to the benefit of the Notifications as they were using the logo of "ATR" belonging to one M/s. ATR St. Moritz A.G., Switzerland. Duty and penalty was demanded from them for having suppressed the facts and non-payment of duty. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y this Order the Appellants have filed Civil Appeal No. 2350 of 2002. 5. No stay was granted in this Appeal, therefore, the Commissioner (Appeals) adjudicated and confirmed the demand by an Order dated 17th July, 2002. The Appellants then filed an Appeal before CEGAT wherein the only contention taken was that the Superintendent had no jurisdiction to issue show cause notices and the Deputy Commissioner had no jurisdiction to adjudicate. CEGAT has dismissed the Appeal by the Order dated 25th June, 2003. The Appellants have filed Civil Appeal No. 406 of 2004 against this Order. 6. It must be mentioned that the only point agitated is that the Superintendent had no jurisdiction to issue the show cause notices and that the Deputy Commissioner had no jurisdiction to adjudicate. This is because in an earlier round it has already been held by CEGAT, by its order dated 17th October, 2000 that the Appellants are not entitled to the benefit of the Notifications. Against that Order Civil Appeal No. 4050 of 2001 is pending before this Court. 7. In order to consider this point it is necessary to see the relevant provisions. 8. Section 11A, as it stood, prior to 14th May, 1992 reads as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roducer or a licensee of a warehouse, as the case may be, the date on which such return is so filed; (B) where no monthly return as aforesaid is filed, the last date on which such return is to be filed under the said rules; (C) in any other case, the date on which the duty is to be paid under this Act or the rules made thereunder; (b) in a case where duty of excise is provisionally assessed under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof; (c) in the case of excisable goods on which duty of excise has been erroneously refunded, the date of such refund." Thus, under Section 11A, as it then stood, whenever it was alleged that there was fraud, collusion, wilful misstatement or suppression of facts, the show cause notices could only be issued by the Collector. As the Act itself laid down a requirement, it has been held, in a number of authorities, that a show cause notice issued and/or adjudication done by an officer below the rank of a Collector would be invalid as such an officer had no jurisdiction. 9. With effect from 14th May, 1992 Section 11A was amended and the word "Collector" was deleted and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, the "proper officer" i.e. Jurisdictional Central Excise Officer can issue notice and adjudicate the demands under Rule 9(2)/Rule 57-I/Rule 57U of Central Excise Rules, 1944. (iv) In order to bring about uniformity and objectivity the Board issued instructions defining powers of adjudication of specified Central Excise Officers taking 'duty involved' as the criterion. 3. Those show cause notices where adjudication orders are not passed up to 28th February, 1997, will be adjudicated as provided hereinafter :- (A) All cases involving fraud, collusion, any wilful mis-statement, suppression of facts, or contravention of Central Excise Act/Rules made thereunder with intent to evade payment of duty and/or where extended period has been invoked in show cause notices, [including Modvat cases, Rule 9(2) cases of this type] will be adjudicated by :- (Amt. of duty involved) Commissioners - Without limit Addl. Commissioners - Up to Rs. 10 lakhs (B) In respect of cases which do not fall under the category (A) above, will be adjudicated by :- (Amt. of duty involved) Commissioners - Without limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons except the Circular No. 13/93-C.X., are hereby rescinded. 8. An immediate exercise should be undertaken thereafter to take the stock of the pendencies as on 1st March and transfer of the relevant files and records to respective adjudicating authorities by 15th March, 1997 under proper receipt. This re-cast figures should be reflected suitably in the Monthly Technical Report of March, 1997 to be submitted in April, 1997. 9. Receipt of this Circular may please be acknowledged. 10. The trade and field formations may be suitably informed." By clauses 3(A) and 5.1 of this Circular, the Board is directing that in cases of fraud, collusion, wilful misstatement or suppression of facts the notice must be issued and adjudication must take place by the Commissioner without limit and by the Deputy Commissioner up to a limit of Rs.10,00,000/-. Thereafter the Board by another Circular dated 13th August, 1997 reiterated the above position. 11. The Appellants place strong reliance upon these two Circulars and submit that by virtue of these Circulars the Superintendent had no jurisdiction to issue the show cause notices and that the Deputy Commissioner had no jurisdiction to adju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asses of Officers. These administrative directions cannot take away jurisdiction vested in a Central Excise Officer under the Act. At the highest all that can be said is Central Excise Officers, as a matter of propriety, must follow the directions and only deal with the work which has been allotted to them by virtue of these Circulars. But if an Officer still issues a notice or adjudicates contrary to the Circulars it would not be a ground for holding that he had no jurisdiction to issue the show cause notice or to set aside the adjudication. 14. The Tribunal has in its order dated 25th June, 2003, inter alia, held as follows :- ".....Further, at the relevant time as per the provisions of Section 11A(1) proper officer which includes Superintendent is competent to issue the show cause notice. Board's Circular is only the administrative direction which does not cause any prejudice to the Appellants....." In our view this is absolutely correct. We, therefore, see no infirmity in the Judgment dated 25th June, 2003. We hold that the Superintendent had jurisdiction to issue show cause notice and the Deputy Commissioner had jurisdiction to adjudicate. 15. As we have held that th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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