Customs, Excise and Gold Tribunal - Tamil Nadu
Mysore Prefabs And Prefabs India vs Collector Of Central Excise on 12 September, 1986
Equivalent citations: 1987(12)ECR653(TRI.-CHENNAI), 1987(27)ELT487(TRI-CHENNAI)
ORDER
1. Since the above applications arises out of a common order of the Collector of Central Excise, Bangalore dated 21.4.86, they are taken up together and disposed of by a single order. The applications have been filed for dispensing with the prior deposit of duty of Rs. 36301.34 and penalty of Rs. 10,000/- in E(SB)/Stay/487/86 and penalty of Rs. 1000/- in E(SB)/Stay/488/86 imposed on the petitioners by the Collector of Central Excise, Bangalore by order dated 21.4.86. Shri Vijayaraghavan, the learned consultant for the petitioners at the outset submitted that the impugned order appealed against suffers from legal infirmity and so the appeals themselves could be taken up and disposed of on a question of law.
2. Heard Shri Bhatia, the learned SDR. The learned SDR also has no objection to the appeals being taken up and disposed of on a preliminary question of law. In the circumstances, we dispense with the prior deposit of the duty and penalty imposed on the petitioners under the impugned order pending disposal of the appeals which we take up for disposal to-day.
E(SB)/829/86/MAS & E(SB)/830/86/MAS
3. The above appeals have been directed against the order of Collector of Central Excise, Bangalore dated 21.4.86 imposing a duty of Rs. 36,301.34 and penalty of Rs. 10,000/- on appellant in Appeal E(SB)/829/86 and penalty of Rs. 1,000/- on appellant in Appeal E(SB)/830/86. Shri Vijayaraghavan, the learned consultant for the appellants at the outset urged a preliminary question of law and contended that the show cause notice in pursuance of which the impugned order has come to be passed was admittedly issued by the Superintendent of Central Excise on 27.12.85 invoking the extended period of limitation envisaged by Section 11A of the Central Excises and Salt Act, 1944 (herein after referred to as the 'Act')- It was urged that in respect of invoking extended period of limitation in terms of Section 11A, it is only the Collector who is the competent authority contemplated by the amendment to Section 11A brought about on 27.12.85.
4. Shri Bhatia, the learned SDR after due verification of the issue raised by the learned consultant for the appellants submitted that the amendment in question to Section 11A for invoking the extended period of limitation came into operation on 27.12.85 under the Central Excises and Salt (Amendment) Act 79/85.
5. We have carefully considered the submissions made by the parties herein. Even-though the appeals relate to issues which a Special Bench alone would be competent to decide, since a preliminary question of law has been canvassed before us with reference to the very legality of the impugned order appealed against; without going into any question relating to either valuation or classification we find we have jurisdiction to dispose of the appeals. In the appeals before us in respect of the clearances effected by the appellants for the year 1984-85 a show cause notice has been issued by the Superintendent of Central Excise on 27.12.85 invoking the extended period of limitation in terms of proviso to Section 11A of the Act. We find that on and from 27.12.85 by reason of the amendment of Central Excises and Salt (Amendment) Act 79/85 it is only the Collector who is the competent authority to issue the show cause notice by invoking the extended period of limitation under Section 11A of the Act. It is not disputed before us that the show cause notice in question has been issued by the Superintendent of Central Excise in the circumstances stated above. We therefore find that the very issuance of the show cause notice itself is without jurisdiction and is not legally valid and consequently the impugned order in consequence of the said show cause notice is also legally not tenable. In this view of the matter we set aside the impugned order appealed against and allow this appeal. We would however like to make it clear that this order of ours would not in any way preclude the department from taking appropriate steps open to them under law for levy of the duty in question from the appellants.