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TMI Blog2002 (2) TMI 202X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the Chartered Engineer's Certificate fraudulently by the Assistant Commissioner; that a show cause notice with such allegations could be issued only by the Commissioner and hence the show cause notice is without jurisdiction and so too the proceedings based thereon. He relied upon the following decisions : (i) CCE, Indore v. ONGC - 1998 (103) E.L.T. 3 (S.C.) (ii) Sun Beverages Pvt. Ltd. v. CCE, Kanpur - 2000 (36) RLT 684 (CEGAT) (iii) Bharat Paints & Chemicals v. CCE, Vadodara - 2000 (119) E.L.T. 145 (T) (iv) Calcutta Steel Industries v. CCE, Chandigarh - 2000 (120) E.L.T. 691 (T) (v) Jayant Vitamins Ltd. v. CCE, Indore - 1996 (81) E.L.T. 421 (T). 3.2 The learned Advocate also mentioned that as per Board's Circular No. 299/15/97/CX., dated 27-2-1997, such a show cause notice can be issued only by the Commissioner; that Board's Circular is fully binding on the Department. Reliance is placed on the following decisions : (i) CCE, Chandigarh v. J.K. Textiles Ltd. - 1998 (99) E.L.T. 390 (T) (ii) CCE, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns Ltd. was issued prior to 1992 amendment as is apparent from the fact that the appeal was filed in 1989. The Supreme Court also in the case of ONGC, (supra), has interpreted "Section 11A(1) as it stood at the relevant time (before it was amended by Act 18 of 1992). In the said judgment, show cause notices were issued on 25-11-1986 and 7-11-1986 when the law required that the show cause notice was to be issued by the Collector of Central Excise. In the case of Calcutta Steel Industries, though the Tribunal agreed with the view taken by the Commissioner (Appeals) that the Assistant Collector had adjudicated the case involving duty more than Rs. 50,000/- beyond his competency and jurisdiction, the Tribunal also took note of the decisions in (1) CCE, Jaipur v. Jaypee Agro Chemicals Ltd. - 1999 (109) E.L.T. 819 (T), and (2) CCE v. Jaipur Polyspin Ltd. - 1999 (113) E.L.T. 265 wherein, it was observed that "by issue of Circular No. 3/92-CX.6, dated 14-5-92 and Circular No. 299/15/97-CX., dated 27-2-1997, the Central Board of Excise and Customs had administratively limited the powers of Assistant Collector of Central Excise and that exceeding these powers could not be treated as a legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out of the procedure under Rule 96ZP(3) informing therein that they would be paying duty on monthly basis under Rule 96ZP(1) from November 1997, the Supreme Court's judgment in the case of CCE v. Venus Castings Pvt. Ltd. - 2000 (117) E.L.T. 273 (S.C.) directly favours their case wherein the Supreme Court held that "If the assessee opts for procedure under Rule 96ZO(1), he may opt out of the procedure under Rule 96ZO(3) for subsequent period and seek the determination of annual capacity of production. He also relied upon the decision in the case of Ranjeev Alloys Ltd. v. CCE - 2001 (135) E.L.T. 671 (T) = 2001 (75) ECC 653; Ganpate Industries v. CCE - 2000 (122) E.L.T. 406 (T), Kishan Chand Steel Re-rolling Mills v. CCE - 2000 (121) E.L.T. 551 (T) and Final Order No. A/494/2000-NB, dated 14-6-2000 in the case of Shivaji Steels v. CCE. He also contended that the 'd' parameter of Rolling Mill 'B' is 350 mm and not 405 mm as alleged in the impugned Order; that Shri Nirmal Kumar, a Chartered Engineer had given a Certificate dated 28-1-98; that the parameter should be accepted in accordance with the report of the Chartered Engineer; that 'd' factor of pinion-stand being 405 is not maintai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, with a view to safeguard the revenue, to specify by Notification goods on which duty of excise shall be levied and collected in accordance with the provisions of Section 3A. The Central Government has specified certain non-alloy steel hot re-rolled under sub-section (1). In exercise of Powers conferred under sub-section (2) of Section 3A, the Central Government has made Hot-Re-rolling Steel Mills Annual Capacity Determination Rules, 1997. Further, according to sub-section (2) such annual capacity of production shall be deemed to be annual production of such goods by the factory and as per the provisions of sub-section (3), the duty of excise shall be levied at such rate as may be specified by Notification. Rule 96ZP of the Central Excise Rules contains the procedure to be followed by the manufacturer of hot re-rolled products. It is not in dispute that the Appellants had filed a declaration along with a Certificate from a Chartered Engineer for determination of Annual Capacity of Production. The Commissioner has determined their Annual Capacity of Production to be 10736 MT per annum under Order dated 27-2-98 provisionally under Rule 3(3) of the Hot Re-rolling Steel Mills Annua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officers on visit of their factory premises on 24-1-1998 found variation in factor 'd' of Mill 'B'. According to the Revenue the factor 'd' was measured by the Foreman of the Appellants in the presence of one of their partner, Shri Sushil Mittal, who admitted the increase in factor 'd' from 350 mm to 405 mm in his statement dated 24-1-98. The Appellants have not mentioned that the statement tendered by the partner was retracted or both their partner and foreman denied to have signed the verification report prepared on 24-1-1998. The Appellants have only mentioned that the partner Shri Sushil Mittal, "observing that the staff was mentally prepared, as usual, to book a case against the party, obliged the visiting staff by tendering his statement according to their suitability and wishes." Nothing prevented him to retract his statement. The Adjudicating Authority has referred to the judgment in the case of K.I. Pavunny v. Asstt. Collector - 1997 (90) E.L.T. 241 (S.C.) wherein the Apex Court observed that the confessional statement if found to be voluntary can form the sole basis of conviction. The Appellants' claim to have taken a Certificate dated 28-1-1998 from a chartered engineer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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