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TMI Blog2004 (6) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... of the impugned order before me mainly on two grounds; firstly that both the show cause notices demanding the duty under Rule 96ZP(3) of the Rules were not issued by a competent officer. Secondly, that no penalty and interest could be imposed on the appellant under sub-rule (1)(A) of Rule 96ZP, when duty had been demanded under sub-rule (3) of Rule 96ZP. The impugned order according to the Counsel on these two grounds is liable to be set aside. On the other hand, the learned JDR has reiterated the correctness of the impugned order. He has contended that the Superintendent who issued both the show cause notices was competent to issue the show cause notices and that the Board's instructions dated 27-2-97 contained in Circular No. 299/15/97-C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Joint Commissioner. But the bare perusal of the Board's Circular 299/15/97-CX., dated 27-2-97 shows that the Superintendent of Central Excise was not competent to issue these show cause notices which was made answerable to the Additional Commissioner and Joint Commissioner respectively. Only the Assistant Commissioner could issue the notices. The Board's Circular is certainly binding on the Department and it could not be ignored by the officers/officials of the Department. The Superintendent was not at all competent to issue the show cause notices in question. He had in fact no power to act and issue show cause notices in question. That being so, the proceedings taken on the strength of these show cause notices, stand vitiated. In this cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 004 (170) E.L.T. 406 (All.) = 2004 (93) ECC 633 referred by the learned DR is not attracted to the facts of the case. In that case all that has been observed by the Hon'ble Allahabad High Court is that the imposition of penalty under Rule 96ZP(3) is mandatory when the assessee had committed default in making payment of duty by tenth of every month. There is no dispute with this proposition of law. But in the instant case this is not the position. No penalty as observed above has been imposed under sub-rule (3) of Rule 96ZP under which differential duty had been demanded from the appellants. Rather penalty has been imposed under another sub-rule i.e. 1(A) of Rule 96ZP under which no duty had been demanded from the appellants. 4. In view o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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