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TMI Blog2002 (2) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... ound that the important points have not been considered. The Tribunal (South Zonal Bench at Chennai) as per its Misc. Order No. 896/99, dated 24-9-99 has rectified the Order to hear the following issues : (a) The show cause notice was time-barred as had been submitted in para 9 of the grounds of appeal; and (b) The show cause notice was issued by the Additional Collector who has no jurisdiction to issue show cause notice invoking the extended period under Section 11A, as during the relevant point of time only the Collector of Central Excise was competent to issue show cause notice. 4.Chennai Bench has transferred this file to Bangalore Bench and accordingly matter is posted for hearing on 23/24-1-2002. Appellants were represented by Shri Ravi Shankar learned Advocate and Deptt. was duly represented by Smt. Radha Arun, SDR. 5.At the first instance Shri Ravi Shankar proceeded to argue on all the issues as if it was an order of review and on pointing out by the Bench, Tribunal is not vested with the power of review and on going through the rectified order, he was convinced and confined to the above two issues. 6.Shri Ravi Shankar submitted that the demand was barred by time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em under proviso to Section 11A involving allegation of fraud, suppression etc. 8.Smt. Radha Arun countering the first issue submitted that according to Section 110 of the Customs Act, the goods seized should be returned to the party if show cause notice is not issued within six months of seizure. Section 110 envisages return only of goods, and not of the documents and goods which can be seized in the course of a search under Section 105 of the Customs Act, and in this case only documents were seized. Referring to the judgment of the Supreme Court in the case of CC v. Charan Das Malhotra reported in 1983 (13) E.L.T. 1477 she said that investigation can continue even after return of the seized goods. In the instant case, since the goods were not seized, demand is not barred by time. She also said that the Larger Bench of the Tribunal in the case of Nizam Sugar reported in 1999 (114) E.L.T. 429 has clearly held that the date of knowledge of the Department is not relevant date under Section 11A for computing the period of limitation, which has to be determined in terms of Section 11A itself. It was contented that a period of six months from the date of seizure should be artificially ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rein it was held that Department had slept for years over the matter and accused assessee of suppression when information was known to the Department. We find that decision in the case of Dura Tex Laboratories Pvt. Ltd. rendered by the Tribunal is not of five members as urged by the appellant's Counsel but of three members that too due to difference of opinion between the two members, matter is referred to the third member. The view expressed by the two members was prior to Nizam Sugar and furthermore Nizam Sugar has not been considered at the time of passing the final Order. Similarly, the conclusion arrived at by the Tribunal in the case of Mutual Industries Ltd., was in a different context since the assessee has filed classification list and other documents and the said ratio of the decision is not applicable to the facts of this case. We take note of the fact that Nizam Sugar Mills rules the field, since it has not been reversed by the Apex Court nor view expressed contrary to the above decision by the Supreme Court subsequent to that decision. In view of the jurisdictional discipline, following the ratio of the decision of the Larger Bench of the Tribunal in the case of Nizam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the rules and cannot be stretched for construing the provisions of the Act and emphasis is on the status of the rules as a piece of supporting legislation and not being capable of equated with the statute itself. It was also argued that it was clarified by the Board by issuing Circular on 14-5-92 that in spite of the amendment, the Collector was required to issue show cause notice. Here we are not concerned with the said clarification since it was issued subsequent to the period in question and clarification is only prospective in nature. 14.We must say at the outset that any argument which has the effect of reaching that the rules as an exercise in delegated legislation cannot be accepted insofar as they according to the party go contrary to the provision of the Act, cannot be entertained. In fact we do not feel it necessary to dwell at length on this aspect because, the Tribunal being itself a creature of the statute, is not a forum where question such as legitimacy or vires of the rules can be raised nor we consider ourselves competent to go into these questions. However, the questions having been raised we thought it relevant to see as to whether there is really any incons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... treated as if they were in the Act itself, both for the purposes of construction and also for the purpose of obligation". In that case, rules were held to be having an equal status, as of the provisions in the Act, so much so that when Rule 10 was omitted from the rules with effect from 17-11-1980, and was replaced by Section 11A in the Act simultaneously, it was held that the same provisions continued and what was previously one part of the Act, had subsequently become another part of the same Act, and there has been complete continuity of the provisions. We, therefore, are unable to subscribe to the view that the definition in the rules will enjoy any inferior status, qua the provisions of the Act. 18.Under the rules, the Collector has been defined with reference to the territorial jurisdiction. Under Rule 2(ii) of the Rules, the definition of 'Collector' apart from defining what a Collector is also contains an inclusive clause. The inclusive part of the definition includes within the definition of Collector an Additional Collector. It also includes any Officer specially authorized under Rule 4 or 5 to exercise throughout any State or any specified area therein all or any of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ional Collector'. In the rules, reference is there to the expressions 'Collector', 'Deputy Collector', 'Assistant Collector', 'Inspector' but there was no reference to the words 'Additional Collector' inasmuch as the word 'Collector;' includes the 'Additional Collector'. 21.According to the Hon'ble High Court, the decision taken by the Additional Collector means a decision taken by the Collector for the purposes of appeal and the authority competent to hear the appeal against the Order of the Collector is only competent to hear and dispose of the appeal from the decision of the Additional Collector. The Hon'ble High Court clarified that the post of Additional Collector comes within the definition of the word 'Collector' and the Additional Collector had to discharge the power and function of a Collector and accordingly appeal would lie to the Appellate Tribunal under Section 35B of the Act. 22.At this stage, it may be mentioned that under the Central Excise (4th Amendment) Rules, 1992 [Notification No. 11/92-C.E. (NT), dated 14-5-1992]. Rule 2 of the Central Excise Rules have been amended and for the words "and includes an Additional Collector" carry after Clause (B) the words, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined in the Act and their designations were left to be provided either by the Board or by means of an exercise of powers under the rules, but even the basic matter of levy and collection of duty as contemplated by the charging section, was to be determined, by the rules as indicated by Section 3. 27.It is therefore, difficult to comprehend that when rules have been given such immense scope and basic functions, how could they be even urged to be considered inferior or secondary to the Act. We have no hesitation in saying that apart from the general proposition that statutory rules are part of the Act, in the peculiar scheme of Central Excise Act, the rules are certainly supplementary as well as complimentary to the provisions of the Act and are to provide for saving which is not covered by the provisions of the Act and the definition of 'Collector' being one of such omissions, the one given in the rules is to prevail as having been supplied by them. The definition of the 'Collector' in the Central Excise Rules includes 'Addl. Collector' and there is no contrary definition of the Collector in the Act. Therefore the expression 'Collector' in Section 11A of the Act would also include ..... X X X X Extracts X X X X X X X X Extracts X X X X
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