CCE Vs. PARADISE CONDUCTOR PVT. LTD.

JUDGEMENT

(1.) NOTICE was issued to Paradise Conductors Pvt. Ltd., Chandrapur, demanding duty of Rs. 7.92 lacs on the ground that the benefit of notification 69/86 exempting the goods from duty was not available to the super enamelled copper winding wire manufactured and cleared by it for the reason that the condition stipulated in the notification, that Modvat credit should not have been availed of the duty paid on the inputs which were used in the manufacture of winding wires, was not complied with. The Assistant Collector, after considering the cause shown and hearing the assessee, confirmed the demand. Disposing of the appeal from that order, the Collector (Appeals) accepted the contention before him that the Assistant Collector's order was in excess of his pecuniary jurisdiction. He noted that the powers of the Assistant Collector demanding duty under Section 11A of the Act, other than the cases relating to approval of classification list and price list limited to Rs. 50,000/ - by a circular dated 3/92 -CX -6 dated 14.5.1992 of the Board. The demand did not relate to any approval of classification list filed. Therefore, the Assistant Collector had no power to adjudicate the demand. On this ground, he allowed the appeal. This appeal from the department is against that order. We have heard the departmental representative. The respondent is absent and unrepresented despite issue of notice. We have gone through the submissions in writing made by it.

(2.) THE ground in the appeal is that the assessee did not raise before the Collector (Appeals) the question of pecuniary jurisdiction before the Assistant Collector. He raised it for the first time before the Collector (Appeals). Therefore, the matter should have been sent back to the Assistant Collector by the Collector (Appeals) with a direction to transfer the case to the Collector for decision. It would follow from the finding of the Collector (Appeals) that the order of the Assistant Collector was in excess of his jurisdiction, that that order is non est. The notice was therefore still pending adjudication. The department could easily have directed adjudication of the notice by the Collector by issue of an appropriate corrigendum. In any event, the appeal does not question the validity or applicability of the Board's circular to the facts of this case. The appeal of the Collector therefore does not succeed in saying that the order of the Collector (Appeals) is illegal or improper.

(3.) THE validity of instructions or circular of the Board limiting the powers of adjudication of officers has been the subject matter of this Tribunal's decision prior to the issue of the order (orders) cited by the departmental representative. In CCE v. Govind Sugar Mills Ltd., 1993 (33) ECR 687 one of the questions before the Tribunal was whether an order of adjudication by the Assistant Collector confirming a demand for duty on a consignment of molasses was within his jurisdiction. The assessee had been permitted to store molasses in open pits after undertaking that no remission of duty payable on it would be claimed under rule 49 if it became unfit for consumption as a result of such storage. Molasses became unfit for consumption and consequently demand for duty was issued in terms of the bond. The demand was confirmed by the Assistant Collector who cited the provisions of rule 49. On appeal, the Collector (Appeals) said that in terms of the second proviso to rule 49 of the Rules, the Assistant Collector was not the competent authority and hence held the order to be without jurisdiction. The department appealed to the Tribunal questioning this finding.