TMI Blog1999 (5) TMI 132X X X X Extracts X X X X X X X X Extracts X X X X ..... ut payment of excise duty and without having the proper Central Excise licence. It was also alleged that such goods were assessable to duty consequent upon rescinding of Notification No. 70/85-C.E., dated 17-3-1985 by Notification No. 174/85-C.E., dated 24-7-1985. The show cause notice was issued by the Superintendent of Central Excise, Range-I Agra. The show cause notice asked the appellants to show cause to the Assistant Collector of Central Excise, Agra. It not only proposed recovery of duty of Rs. 1,09,095.85 but also proposed imposition of penalty. On adjudication, the demand of duty, as aforesaid has been confirmed and a penalty of Rs. 5,000/- was also imposed by the Additional Commissioner. 1.2 It may be stated at this stage that i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Pratap Rajasthan Copper Foils reported in 1989 (44) E.L.T. 775. He also relies on another judgment of the Tribunal in the case of Sarveshwari Gases (P) Ltd. vide Final Order No. 764/90-C, dated 12-7-1990. This judgment of the Tribunal in the case of Sarveshwari Gases (P) Ltd. followed Tribunal s judgment in Pratap Rajasthan Copper Foils, supra. He submits that in both these cases the show cause notices had been issued within six months as in the present case but since the show cause notices had alleged wilful misstatement or suppression of fact or contravention of rule with intent to evade payment of duty, these were required to be issued by the Commissioner (Collector) and hence the appeals were allowed in those cases. Since a simila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and therefore, should be ignored. Under Rule 9(2), he submits, demand of duty and imposition penalty can be by the `proper officer . The proper officer, submits the learned JDR, is any officer of the Central Excise i.e. Inspector of Central Excise to Collector having jurisdiction over the factory. Therefore, the issue of show cause notice by the Superintendent was within his competence. He could even decide if he would like but in view of some distribution of work it has been decided by the Additional Collector. He also relies on Apex Court s judgment in 1996 (84) E.L.T. 9 in the case of Safari Industries which holds as follows :- We have heard the learned Attorney General on behalf of the appellant and Shri Dushyant Dave, learned C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of suppression or misstatement of facts or contravention of rule with intent to evade payment of duty nor does it refer to any such point regarding the lack of jurisdiction in the Superintendent to issue show cause notice or whether the aforesaid objections was at all raised by the learned Advocate for the respondents. In these circumstances, he submits that Supreme Court s judgment in the case of Safari Industries should not be relied upon as against the subsequent judgment of Supreme Court in the case of ONGC reported in 1998 (103) E.L.T. 3 (S.C.) which clearly holds that a show cause notice issued by an officer other than a Collector under Section 11A(1) proviso is liable to be quashed. He, therefore, submits that following the said rat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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