Customs, Excise and Gold Tribunal - Mumbai
G.C. Industries, Ganapati Re-Rolling ... vs Commissioner Of Customs And Central ... on 27 April, 2004
Equivalent citations: 2004(178)ELT206(TRI-MUMBAI)
ORDER Jyoti Balasundaram, Member (J)
1. Vide order No. C-I/2727 to 2734/WZB/2003 dated 24/10/2003 the Tribunal held that the benefit of deemed credit is not admissible to the Respondents/assessees, set aside the impugned order of the Commissioner (Appeals) and allowed the appeals of the Revenue following the larger bench decision of the Tribunal in the case of Digambar Foundry v. CCE 2000 (118) ELT 85 wherein it has been held that re-rollers, whose aggregate value of clearances in a financial year exceeded Rs. 75 lakhs, are not eligible to the benefit of deemed credit under the order dated 01/03/1994.
2. The applicants seek recall of the Tribunal's final order on the ground that they did not receive any intimation about the hearing and therefore could not get an opportunity to argue the question of jurisdiction. According to the applicants the show cause notices issued in terms of Rule 57I of the Central Excise Rules by the Superintendent of Central Excise and answerable to the Additional Collector of Central Excise is without jurisdiction as it ought to have been issued by the adjudicating authority, namely, the Additional Collector, as per Board's circular No. 66/88 dated 20/12/1988. In support of this contention reliance is placed by the learned counsel for the applicants on Tribunal's decisions in the case of Genuine Engineering (P) Ltd. v. CCE, Jaipur 1999 (109) ELT 702 and Saraswathi Steel Industries order No. C-I/1204AVZB/2003 dated 13/05/2003.
3. The prayer for recall was opposed by the learned JCDR who submits that not only the issue stands decided against the assessees on merits by the larger bench, the Superintendent is the proper officer to issue notice and adjudicate the notice under Rule 57I, and the Board's circular dated 20/12/1988 only stipulates that in the case of show cause notices under Rule 57I for recover within the extended period of limitation, the Collector is the proper officer for issue of notice and adjudication thereof. He submits that the decisions relied upon by the learned Counsel are those where the notices were issued beyond the statutory period of six months or one year, as the case may be, and therefore did not come in aid of the applicants since the notices in the present case had been issued within the normal period of limitation.
4. We have carefully considered the rival submissions and find substance in the plea of the Revenue. In the notification issued under Rule 2 designating 'proper officer' under Central Excise Rules, 1944, the Superintendent of Central Excise has been shown as the proper officer for the purpose of Rule 57-I. Although this notification designating 'proper officer' is based upon the CBEC circular dated 12/05/1987 it has not been brought to our notice that subsequent to 20/12/1988 any fresh notification, designating some other officer as the 'proper officer' for the purpose of Rule 57I was ever issued. This reinforces our view that it is the Superintendent of Central Excise who is the 'proper officer' for issuing and adjudicating show cause notices in terms of Rule 57-I of the Central Excise Rules, 1944. The question as to whether in the case of extended period it will be Superintendent or any other officer, or the Collector alone who can issue and adjudicate the notices is not required to be gone into by us in the present case as none of the notices have been issued invoking the extended period of limitation.
5. We therefore hold that no ground for recall of our order has been made out by the applicants and accordingly dismiss these applications.
(Dictated in the Court)