Customs, Excise and Gold Tribunal - Delhi
Pahwa Chemicals (P) Ltd. vs Commissioner Of Central Excise on 25 June, 2003
Equivalent citations: 2003(90)ECC547
JUDGMENT V.K. Agrawal, Member (T)
1. In this Appeal filed by M/s Pahawa Chemicals (P) Ltd., the issue involved is whether they are eligible for the benefit of small scale exemption under Notification No. 16/97-CE dated 1.4.1997.
2. Shri A.K. Jain, learned Advocate for the Appellants, has sent the written submissions wherein it has been mentioned that the present impugned Order has been passed by the Commissioner (Appeals) in pursuance of Tribunal's Final Order No. A-560/2001-NB, dated 19.7.2001 under which the matter was remanded to the Commissioner (Appeals); that against the said Final Order, a Civil Appeal has been filed before the Hon'ble Supreme Court which stands admitted; that they have also requested the Hon'ble Supreme Court to hear the Appeal out of turn. The learned Advocate has, further, mentioned in the written submissions that the matter deserves to be referred to a Larger Bench in view of numerous conflicting judgments about the binding nature of the Board's Circular. He has, further mentioned that it has been held by the Supreme Court in CCE, Vadodara v. Dhiren Chemicals Industries, 2002 (79) ECC1 (SC): 2002 (139) ELT 3 (SC) that Board's Circular is binding irrespective of the fact that whether the same is right or wrong or contrary to Supreme Court's judgment; that the impugned order is contrary to Board's Circular No. 3/92-CX 6, dated 14.5.1992 and 299/15/1997 CX dated 27.2.1997 wherein it has been held that if a show cause notice contains allegation of wilful mis-statement, it has to be issued only by the Commissioner/Additional Commissioner and not by the Superintendent, that further, the Deputy Commissioner cannot confirm a demand of Rs. 26.75 lakhs as the same is beyond the monetary limit prescribed in the Board Circular No. 328/44/1997-CX, dated 13.8.1997. It has also been mentioned in the written submissions that the impugned order is beyond the instructions given by the Tribunal in its remand order dated 19.7.2001; that the impugned order is opposite to the earlier Order-in-Appeal passed by the Commissioner (Appeals) against which the Department had not gone into Appeal, thereby admitting the same; that in such circumstances impugned order itself cannot survive.
3. Countering the arguments, Shri R.C. Sharma, learned Senior Departmental Representative submitted that the Appellants manufacture textile printing adhesive which is sold after packing in plastic jars and affixing paper labels bearing the brand name "ATR" owned by a foreign concern; that the Appellate Tribunal in the Appellants' own matter has held, vide Final Order No. 346/2000-D dated 17.10.2000 that on merit the case is entirely covered against them in view of the Larger Bench's decision of the Tribunal in the case of Namtech System Ltd. v. CCE, New Delhi, 2000 (115) ELT 238 (Tri). He further, submitted that even in the Final Order dated 19.7.2001 it has been observed by the Tribunal, while remanding the matter to the Commissioner (Appeals), that "the matter relating to the denial of benefit of small scale exemption under Notification No. 1/93-CE dated 28.2.1993 (as amended), Notification No. 16/97-CE dated 1.4.1997 to the Taxtile Printing adhesive manufactured by M/s Pahwa. Had already been decided by the Tribunal while disposing of their earlier Appeal bearing No. E/1111/99-D." The learned Departmental Representative, therefore, contended that Appeal on merit has already been decided, against the appellants not once but twice by the Appellate Tribunal; that in the present matters show cause notice have been issued within a period of six months specified in Section 11A(1) of the Central Excise Act; that as the Show Cause Notice had been issued within the normal period of limitation, Superintendent is eligible to issue the Show Cause Notice; that mere use of words suppression or mis-statement of facts would not make show cause notice issued by the Superintendent invalid.
4. We have considered the submissions of both the sides. The learned Senior Departmental Representative has rightly pointed out that the issue on merits has been decided by the Tribunal against the Appellants vide Final Order No. 346/2000-B dated 17.10.2000, the Tribunal, relying upon the decision of the Larger Bench in the case of Namtech System Ltd., has held that they are not eligible for the benefit of Small Scale Exemption as they had used the brand name of another person for their product. We also observe that the Tribunal had remanded the present matter vide Order dated 19.7.2001 with the direction to the Commissioner (Appeals) to pass a speaking appealable order as per law after hearing the Appellants who are at liberty to place various arguments. The Commissioner (Appeals) has passed the present impugned order after hearing the Appellants. In view of these facts, it cannot be claimed by the Appellants that the present impugned order has been passed beyond the remand order passed by the Tribunal. As far as the jurisdiction of the Superintendent to issue the Show Cause Notice is concerned, the Commissioner (Appeals) in the impugned order has given his specific finding that "the Appellants were not called upon to show cause as to why extended period under proviso to Section 11A of Central Excise Act, 1944 should not be invoked. Hence, there was no reason to challenge the same specially when the period of demand falls within the normal period of limitation during which Show Cause Notices were issued."We find no infirmity in this finding of the Commissioner (Appeals). It is not the case of the Appellants that the Show Cause Notice were not issued for the normal period of limitation specified in Section 11A of the Central Excise Act. Further, at the relevant time as per the provisions of Section 11A(1) proper officer which includes Superintendent is competent to issue the show cause notice. Board's Circular is only the administrative direction which does not cause any prejudice to the Appellants. We, therefore, do not find any reason to refer the matter to the Larger Bench of the Tribunal also. Accordingly, we find no merit in the Appeal which is rejected.