Customs, Excise and Gold Tribunal - Mumbai
The Shrigonda Ssk Limited vs Commissioner Of Customs And Central ... on 13 August, 2001
Equivalent citations: 2002(141)ELT194(TRI-MUMBAI)
ORDER
1. On hearing both sides on the application, since the issue in law is well settled, the appeal itself was taken up for disposal, on granting waiver of pre-deposit of Rs. 11,38,262/- as prayed for.
2. The appellant manufacture denatured alcohol. They received molasses, an input, under cover of transport permits. Such permits are not modvatable documents, in terms of Rule 57G(3) of Central Excise Rules 1944. The jurisdictional Superintendent therefore wrote a letter dated 1/7/1998 to the appellant directing them to reverse the modvat credit and warned them that failure to reverse the credit would result in "necessary action under Central Excise Rules, 1944". Against this letter the appellant filed an appeal. The Commissioner (Appeals) entertained the appeal although the letter could not be termed to be either as a "order or a decision" as mentioned in Section 35A of the Act. He accepted that the assessee had voluntarily reversed the said amount. He further held the subject letter as wrongly issued. He observed that only the Assistant Commissioner should have done this on following the provisions of Rule 571 of the Central Excise Rules, 1944 i.e., of issuing notice etc. Surprisingly (SIC) the learned Commissioner chose to treat the letter itself as a show cause notice and directed the Assistant Commissioner as well as the assessee to go through the adjudication proceedings. Against this order the appeal has been filed.
3. Heard Shri K.P. Joshi, advocate for the appellant and Shri B.B. Sarkar, DR, for the Revenue.
4. Rule 57(1) requires a notice to be given for disallowance/reversal of modvat credit by the appropriate officer. The format of the notice, even if not spelt out by the said rules, is universally known and followed inasmuch as under as (SIC) provision, (SIC) Section 11A of the Act under millions of show cause notices have been issued. The direction of the learned Commissioner to treat the subject letter as a show cause notice is not founded on any authority vested in him. This order is patently bad in law and is set aside.
5. The appeal is allowed.