TMI Blog2009 (3) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned order dated 21.03.2003, passed by Custom, Excise and Service Tax Appellate Tribunal (herein after referred as CESTAT), New Delhi, in appeal No. EA/2911-12/02-C of 2002, on which under directions of this Court, reference was made by said Tribunal on following questions:- 1. Whether the matter (BHEL's Appeal against CCE/Meerut's O-1-O No. 36-37/Commr/2002 dated 30.09.2002) heard and decided by the CESTAT on 21/03/2003 was continuation of the same proceedings as initiated vide Superintendent Central Excise's Show Cause Notices dated 26/06/1996 and 27/08/1996? 2. Whether the question of law about the legal competence of Superintendent Central Excise to issue Show Cause Notice (herein after referred as SCN) for disallowance of Modvat Credit and consequently of the jurisdiction of Adjudicating Authority over the matter (which depended on legality validity of SCN) was legally permissible to be raised in the hearing dated 21/03/2003 of the Appeals before CESTAT? 3(a) Whether the directions by the CESTAT vide its order No. A/922/2000-NB dated 19/10/2000, to Commissioner C. Excise Meerut to decide the admissibility of and to re-quantify the credit allegedly availed be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the adjudication order and matter was remanded to the Adjudicating Authority to requantify the duty and penalty in the light of the finding of the Tribunal. The Tribunal while remanding the matter to the Adjudicating Authority decided two issues regarding the benefit of credit in respect of lubricating oil and regarding filing the declaration of inputs and outputs under Rule 57 G in the Assessee's favour and the issue regarding admissibility of Cenvat credit beyond the permissible period of six months from the date of duty paying documents against them. In the remanded proceedings, the Adjudicating Authority vide order dated 30.09.2002 besides disallowing credit amounting to Rs. 6,01,928/- on documents over six months old, also disallowed Cenvat credit amounting to Rs. 1,98,626/- on Sulpuric Acid Gas analyzer and Transmitter and Cenvat Credit amounting to Rs. 1,26,862/- on the Appellant under Rule 173 A (1) (bb) of the Central Excise Rules, 1944. The Assessee again filed appeal before the Tribunal and the Tribunal vide impugned order No. A/167-168/03-NB-C dated 21.03.2003 set aside the order passed by Adjudicating Authority on the ground that the order was beyond the scope of rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery of Modvat Credit wrongly availed by the assessee. Circular letter No. F 267/104/87-CX .8, dated 15.12.1987, is silent as to who can issue the show cause notice, it simply says that competent officer to decide the matter on the show cause notice issued for disallowing Modvat credit is Assistant Collector. Of course, the circular letter No. 66/88 dated 20.12.1988 provides that in cases of wrong availment of Modvat Credit (except the cases of suppression of facts, wilful misstatements, collusion etc), respective adjudicating officers should issue and decide the show cause notice. As far as circular letter No. 3/92-CX 6, dated 14.05.1992 is concerned, it is also silent as to who can issue notice. The relevant rule applicable to the case is sub-rule (1) of Rule 57-I of Central Excise Rules, 1944, which reads as under:- "Rule 57-I. Recovery of credit wrongly availed of or utilised in an irregular manner- (1) (i) Where credit of duty paid on inputs has been taken on account of an error, omission or mis-construction, on the part of an officer or manufacturer, or an assessee, the proper officer may, within six months from the date of filing the return required to be submitted in te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a-5.2 of said circular letter dated 27.02.1997, it has been clarified that show cause notices will be issued by Range Superintendents where they are to be adjudicated by the Assistant Commissioners, and such notices would be issued by Assistant Commissioners when they are to be adjudicated by Deputy Commissioner/Additional Commissioner or Commissioners. This para settles the dispute raised by the assessee as to competence of Superintendent Central Excise in the matters to be adjudication by the Assistant Commissioners. Therefore, we do not find any illegality in the show cause notice issued by Superintendent Central Excise, in the present matter. Also, perusal of reply to show cause notice given by the assessee, further shows that the assessee has nowhere objected to the competence of the issuing authority (Superintending Central Excise). Apart from this, since all the objections raised by the assessee are considered by the competent adjudicating authority as such, no prejudice appears to have been caused to the assessee. As such, the questions No. 1 and 2 referred stand answered. 5. Learned counsel for the assessee drew attention of this Court to the case of Eicher Motors L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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