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TMI Blog2006 (9) TMI 189X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 11A of the Act. Aggrieved respondent No.1 filed an appeal before the Commissioner (Appeals) who by his order dated 29-9-2000 confirmed the order of the Additional Commissioner, Central Excise, Indore. Respondent No. 1 then filed an appeal before the Customs Excise Gold (Control) Appellate Tribunal, West Regional Bench at Mumbai and by order dated 11-11-2002, the Tribunal accepted the contention of the respondent that the notice issued and adjudicated upon by the Additional Commissioner suffers from want of jurisdiction and was bad in law and allowed the appeal with consequential relief. Aggrieved by the said order dated 11-11-2002, the Revenue has filed this application under Section 35H of the Act praying for direction to the Appella ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l arises out of the order of the Commissioner of Central Excise (Appeals) who has confirmed total demand of Rs. 4,09,625/- confiscated excess stock with option to redeem the same on payment of fine and imposed penalties of Rs. 2 lakhs under Rule 9(2), 173Q and 226 and a mandatory penalty of Rs. 4,09,625/- under Sec. 11AC of the Central Excise Act. (2) The challenge is to the jurisdiction of the Addl. Commissioner who has issued the show cause notice and adjudicated the same, on the ground that even after the amendment to Sec. 11A of the Central Excise Act, by which the words "Collector of Central Excise" shows as the Commissioner having jurisdiction for issuing notice invoking the proviso to Sec.11A (1) with "proper officer", it was the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dditional Commissioner suffers from want of jurisdiction and was bad in law has to be accepted. In the aforesaid order dated 11-11-2002, therefore, the Appellate Tribunal has not determined any question having relation to rate of duty of excise or to the value of goods. Since the appellate Tribunal, among other things has not determined any question having relation to rate of duty of excise or to the value of goods, the contention of Mr. Subedar that the remedy of the applicant was to file an appeal before the Supreme Court under Section 35L of the Act and not to file an application for reference under Section 35H of the Act has no substance. 6. Mr. Subedar next submitted that in any case the Supreme Court has decided in the matter of Col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... resent case. He submitted that the provisions of Section 11A as amended by Act No. 18 of 1992 would apply to the facts of the present case and the Court will have to decide the question of law as to whether after the amendment of 1992, the Additional Commissioner had the jurisdiction to issue the notice and adjudicate the matter in the present case. 8. We find full force in the submission of Mr. Zelawat. In the case of Collector of Central Excise, Indore v. Oil Natural Gas Commission (supra), the notice under Section 11A and the adjudication under Section 11A were of prior to the amendment of Section 11A(1) by Act No. 18 of 1992 and before the said amendment there was a clear provision in the proviso to Section 11A(1) of the Act that wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases where allegation of fraud, suppression of fact etc. are involved and the appellate Tribunal North Regional Bench, New Delhi in Indexpo International (P) Ltd v. Collector of Central Excise, Delhi has held that in terms of the aforesaid Board Circular No.3/92-CX.6, cases under Section 11A of the Act where allegation of fraud were involved could be adjudicated by the Collector. In the present reference application, the Court will have to answer the question of law as to whether even after the amendment to Section 11A of the Act by the Amendment Act of 1992, in cases involving fraud, suppression of fact etc. only the Commissioner of Central Excise will have the power to issue notice and adjudicate the matter under Section 11A of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X
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