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TMI Blog2019 (1) TMI 1729X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner has already challenged the circular issued by the respondents and pursuant to the circular, the impugned orders are liable to be scrapped. In view of the circular issued by the Ministry of Finance, the respondents/Commissioner of Central Excise has no authority to adjudicate the issues set out in the impugned show cause notices. Thus, the impugned show cause notices are untenable and in violation of the circular issued by the Ministry of Finance under the provisions of the Central Excise Act, 1944. 4. The Learned Counsel for the writ petitioner further urged this Court by stating that the subject matter involved in the impugned show cause notices were already decided by the Appellate Tribunal, South Zonal Bench Chennai in the case of Cavinkare Pvt. Ltd. v. Commissioner of Central Excise, Pondicherry reported in 2017 (347) E.L.T. 514 (Tri. - Chennai). The petitioner in the present writ petitions are the petitioner in that case also. Paragraphs 4, 4.1 & 4.2 of the judgment cited supra are relevant and the said paragraphs are extracted hereunder :- "4. In so far as the facts depicted at the outset are concerned, there is no dispute by Revenue. The legal dispute of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t each package offered to sell to the customer contains three sachets. Net weight of all the three sachets are stated thereon. It is a "multi-piece package" which is capable of being offered to sell as such only because a package is a "multi-piece package", the same cannot be taken out of the umbrage of exemption clause contained in Rule 34 of the Rules. Why the commodity cannot independently be sold either by weight or measure is beyond our comprehension, particularly when Rule 12(2) permits the same. The illustration appended to Rule 2(y) brings out a clearer picture. It states that the combined net weight shall be taken into consideration for the purposes mentioned therein. After combined weight is taken into consideration for the purpose of applicability of the Rules, there is no reason as to why the said purpose shall not be considered to be a relevant factor for applying the exemption provision. Assuming Rule 2(j) was otherwise vague or unambiguous, illustration appended thereto brings out the true meaning and purport thereof. The reasoning adopted by the Madras High Court in Varnica Herbs [supra] does not appeal to us. It was rendered per incuriam. It was held to be so in Ur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r by stating that the circulars were issued for providing instructions to the Subordinate officials and the same cannot supersede the powers conferred on the competent authority under the provisions of the Central Excise Act. The power of adjudication conferred under the Act to an authority cannot be taken away by way of a circular by the Commissioner or as a matter of fact by any other authority. This apart, the issues set out in the impugned show cause notices are to be adjudicated with reference to the facts and by considering the materials available on record. Such a power of adjudication can never be taken away, which is vital for the purpose of assessment of the tax and other liabilities. Thus, the very contention raised on behalf of the writ petitioner is untenable and in violation of the very spirit and the provisions of the Central Excise Act. 8. Considering the arguments advanced by the respective Learned Counsels appearing on behalf of the petitioner and the respondents, this Court is of an opinion that the instructions/circulars issued by the competent authorities can supplement the provisions of law. However, such circulars/instructions can never supplement the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to follow the statute and not the circular. 11. Thus, it is clarified that the circular/instructions, if it runs contrary to the spirit of the Act, the Act alone should be followed by the authorities competent and with reference to the present writ petitions, it is clarified that the powers conferred on the Central Excise officer to adjudicate the facts and the materials available on record for the purpose of assessment has to be adhered to and there cannot be any deviation. Thus, the power conferred to the Central Excise officer for adjudication cannot be taken away by way of a circular and all such circulars are meant for the purpose of issuing certain instructions/guidelines to the Subordinate officials for the purpose of considering the case or to effect assessments in a particular manner. 12. In respect of the show cause notices, which are under challenge in these writ petitions, this Court is of an opinion that no writ can be entertained against a show cause notice in a routine manner. A writ against the show cause notice can be entertained only if the same has been issued by an incompetent authority having no jurisdiction or if an allegation of mala fides are r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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