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2015 (6) TMI 299 - HC - Central ExciseDenial of MODVAT Credit - Whether the Tribunal was justified in holding that the department’s circulars issued giving powers to issue show cause notice under Rule 57-I of the Central Excise Rules, 1944 to the Assistant Collector and Collector can be given effect to the same being executive and advisory in nature and not issued under the provision of Rule 233 (wrongly mentioned as 33 in the question of law framed) of the Rules - Held that:- Officers of the department cannot in violation to the circular proceed to take action by saying that the circular is only advisory in nature or that it is not a circular issued under the statutory rule i.e. Rule 233. Once we find that the legal position in this regard is well settled, then we have to hold that in the light of the circular issued by the Board clarifying the position with regard to who is the “proper officer” as defined under Section 2(b) of the Act, the departmental authorities are duty bound to follow the circular. - It is not known as to how the Tribunal could take a different view from the one taken by it in an appeal filed by the same assessee on 17-10-2000 in the case of Bharat Heavy Electricals Ltd. v. Commissioner of Central Excise, Indore (2000 (10) TMI 374 - CEGAT, NEW DELHI). Once it is found that the show cause notice is issued by an unauthorized person, we have to hold that the entire action initiated is unsustainable, void ab initio and stands vitiated. - Superintendent could not issue the show cause notice in relation to the recovery of Modvat credit after disallowing it and it was only the Assistant Collector or Collector who could issue the notice. Whether the Tribunal is justified in arriving at the conclusion that the department’s circulars have no legal sanctity as they have not been issued in accordance with Rule 33 of the Rules - When a departmental circular is issued by the Board, it would be in accordance to the power available to the Board under Section 37B and until and unless it is not shown that the circular is contrary to any law laid down by the Supreme Court or judgment of High Court, the same shall be binding on all the officers of the Excise Department and only on the ground that the circular is not issued under Rule 233 of the Rules, the officer cannot refuse to follow the circular by saying that it is only advisory in nature. All the circulars issued by the Board in its administrative and executive jurisdiction are binding on the officers of the Board until and unless it can be shown that they are contrary to any law laid down by Supreme Court or High Court with regard to the subject matter of the circular. - Decided in favour of assessee.
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