By
K.Vijay Kumar, M.A.,B.Ed., B.L.,
SUPERINTENDENT OF CENTRAL EXCISE
This has reference to the lengthy, scholarly article by sri V.T.Raghavachari, Hon'ble Member, CEGAT and Distt. And Sessions Judge( Rtd.) on the above subject [1997(92)E.L.T.A 166]. With utmost respect to the learned judge, L must venture to differ from his views.
The question discussed in detail by the learned judge was whether the notice alleging non payment of duty, due to fraud etc. should be necessarily issued by the Commissioner, irrespective the period of demand…….
As discussed by Sri Raghavachari in the first para of his article, whenever excise duty has to be realized from the assessee, show cause notice has to be issued under Section 11A of the Central Excise Act within six months from the relevant date and as per the proviso to the Section if the non payment is by reason of frauds, collusion, etc, the words "six months " will be read as "five years". Then who should issue the Show Cause Excise Notice? It is worth quoting sri Raghavachari "The legal problem to be studied in this article relates to the authority by whom the show cause notice is to be issued. The main part of the Section 11A authorizes any central excise officer to issue the show cause notice demanding duty. The proviso stipulates that in cases where the proviso is attracted, the main part should read as if for the words "Central Excise Officer "the words "commissioner of Central Excise" are substituted.
This is exactly where the learned judge is wrong. Section 11A was amended in 1992 by which the above underlined portion was deleted from Section 11A.
So the position now is that for cases covered by fraud etc., the period is five years but the show cause notice can be issued by a Central Excise Officer and not necessarily by the Commissioner and this has been the position for the last five years!
However after the amendment to the Section, In 1992, Board vide F.No.203/26/92-CX.8 Circular No.3/92-CX.6 , dated 14-5-1992 had clarified that in cases where fraud etc. are alleged, the show cause notices will continue to be issued by the Collectors in spite of the amendment authorizing any central excise officer to issue the show cause notices. So though the law provided for issue of show cause notice by any central excise officer, the Board by executive instructions maintained that notwithstanding the amendment the Show Cause Notices will continue to bne issued by the Commissioners (Collectors then) till 27-2-1997 when, the Board issued fresh instructions on powers of adjudication.
In circular No.299/15.97-cx, dated 27-2-1997 Board has given new directions on the adjudication powers and has now decided that in cases covered by fraud etc. the Show cause Notices will be issued by the same rank of officers who will adjudication are as follows : -
(a) Cases covered by fraud, collusion etc.
Commissioners without Limit
Additional Commissioners Upto Rs.10 Lakhs
(b) Other cases
Commissioners without Limit
Additional Commissioners/ Above Rs. 2 Lakhs and
Dy.Commissioners Upto Rs. 2 Lakhs
Asstt.Commissioners
In cases covered by (a), Show Cause Notices will be issued by the same rank of officers who will adjudicate them. The scope of Show Cause Notices in the other cases is beyond the purview of this article.
So the position in respect of cases covered by fraud etc. is like this –
- Till 27-2-1997 though the Show Cause Notices could be issued by any officer, but by executive instructions, the Board decided that Show Cause Notices will be issued by the Commissioners only.
- After 27-2-1997 the Show Cause Notices will be issued by the officers competent to adjudicate the case and this includes Additional Commissioners.
Thus the hypothetical question of Sri Raghavachari as to how the Tribunal will decide if a Show Cause Notice issued by a Supdt. Is called in question, is now not relevant.
EXCISE LAW TIMES – 01.10. 1997 – A 8
No comments:
Post a Comment