Commissioner of Central Excise vs Saraswati Rubber Works (P) Ltd.

Adarsh Kumar Goel, J.—This appeal has been preferred by the revenue u/s 35G of the Central Excise Act, 1944 (for short, "the Act") against order dated 21.9.2004 passed by the Customs, Excise & Services Tax Appellate Tribunal, New Delhi proposing to raise following substantial question of law:

Whether the Show Cause Notice in respect of shortages of finished goods and raw material which have been alleged to be cleared without payment of duty, without issuing of invoices and without accounting for in statutory records, which has been issued by the Deputy Commissioner within period of six months from the date of detection of shortages is beyond his jurisdiction?

On checking by the Preventive Branch of the Central Excise Department on 2.7.1999, it was found that there was shortage of finished goods and raw material. Accordingly, proceedings were initiated and the adjudicating authority confirmed the demand and also imposed penalty. On appeal, the said order was set aside on the ground that as per circular of the Board dated 27.2.1997, only Additional Commissioner is to deal with the matter involving suppression of facts or contravention of rules with intention to evade duty. The said view has been upheld by the Tribunal.

We have heard learned Counsel for the appellant. None appears for the respondent inspite of service.

Learned Counsel for the appellant submits that in view of judgment of the Hon''ble Supreme Court in Pahwa Chemicals Pvt. Ltd. Vs. The Commissioner of Central Excise, New Delhi, , order of the adjudicating authority could not be set aside on the ground that the work was allotted to a different officer under the circular of the Board. It was held that u/s 2(b) of the Act, ''Central Excise Officer'' included any officer specified therein. u/s 11A of the Act, ''Central Excise Officer'' could deal with the matter. In view of definition of ''Central Excise Officer'', the circular of the Board could not have the effect to nullify the statutory power u/s 11A of the Act.

In view of above, the matter is fully covered in favour of the revenue by above judgment of the Hon''ble Supreme Court.

Accordingly, we allow this appeal and set aside the orders of the Commissioner and the Tribunal and remand the matter to the Commissioner Central Excise (Appeals), Gurgaon for fresh decision on merits in accordance with law.