2. The Revenue filed this appeal against the Order-in-Appeal passed by the Commissioner (Appeals) whereby the Commissioner (Appeals) held that the show cause notice was issued by the Assistant Commissioner invoking the extended period of limitation under Section 11A of the Central Excise Act alleging suppression of facts is without jurisdiction.
3. The brief facts of the case are that the respondents are engaged in the manufacture of pouches of plastic. On 4.3.99, the Officers of Revenue Department visited the factory of the respondents during the scrutiny of the record it was found that the respondents evaded the duty amounting to Rs. 3,08,810.06 by clearing the final product under the garb of job work and under the garb of reprocessed goods. The respondents were also not including the cost of printed cylinders in the assessable value of their final products. A show cause notice was issued to the appellants by the Assistant commissioner invoking the provisions of Section 11A (1) of the Act. The adjudicating authority after relying upon the Board's Circular No. 229/15/97-CX dated 27.2.1997 held that the demand beyond the period of six months, from the date of issue of show cause notice, is time bared due to lack of jurisdiction. The respondents filed the appeal and the Commissioner (Appeals) held that as per Board's Circular dated 27.2.97 only the Commissioner can issue a show cause notice in the case fraud, collusion or any wilful mis-statement or suppression of facts, etc. As the Assistant Commissioner issue show cause notice alleging suppression with an intent to evade payment of duty, therefore the whole of show cause notice is without jurisdiction.
4. The contention of the Revenue is that in the present appeal is that relating to the proviso to Section 11A(1) of the Central Excise Act provides that the Central Excise Officer is competent to issue a show cause notice even in the case of extended period of limitation and as per the definition of the Central Excise Officers under the Central Excise Act, the Assistant commissioner of Central Excise was competent to issue show cause notice even in the case of extended period of limitation. The Revenue relied upon the decision of the Tribunal in the case of Gopal Mills v. CCE, Chandigarh-I, 2002 (142) ELT 604 to submit that the Tribunal after considering the Board's Circular dated 27.2.97 held that the Assistant Commissioner is competent to issue show cause notice.
5. The contention of the respondents is that as per Board's Circular No. 299/15/97-CX dated 27.2.97 the Commissioner of Central Excise is competent to issue show cause notice whereby the demand if made on the allegation of suppression, fraud, etc. by invoking the proviso to section 11A of the Central Excise Act. the respondents relied upon the decision of the Tribunal in the case of CCE v. A.B.B. Ltd. 1999 (106) ELT 473 and CCE v. Paradise Conductors Pvt. Ltd., 1999 (84) ECR 900.
The contention of the respondents is that in this case the Tribunal held that the Board's Circular dated 27.2.97 is binding in nature and only the Commissioner of Central Excise is comptent to issue show cause notice where the demand was made on the ground of suppression, fraud, etc.
7. In this case, a show cause notice was issued to the respondents on 21.5.99. The provisions of Section 11A (1) of the Central Excise Act, 1944 at that time were as under : - "Section 11A. Recovery of duties not levied or not paid or short paid or erroneously refunded : - (1) when any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded, whether nor not such non-levy or non-payment, short levy or short payment or erroneous refund, as the case may be, was on the basis of any approval, acceptance or assessment relating to the rate of duty on or valuation of excisable goods under any other provisions of this Act or the rules made there under) a Central Excise Officer may within six months from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short levied or short paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice : Provided that where any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded, by reason of fraud, collusion or any willful mis-statement or suppression of facts, or contravention of any of the provisions of this Act or the rules made there under with an intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect, as if (***) for the words (six months), the words "Five years" were substituted." 6. Reading the above provisions of Section 11A that Central Excise Officers were competent to issue show cause notice even in the case of fraud, suppression, etc. The Tribunal in the case of Gopal Mills v.CCE, Chandigarh, 2002 (142) ELT 604 after considering the Board's Curricular dated 27.2.97 and the Decision of the Tribunal now relied upon by the respondents and other decisions of the Tribunal held that the Assistant Commissioner of Central Excise was comptent to issue show cause notice even in the case the proviso to Section 11A(1) is invoked.
8. In view of the above decisions of the Tribunal, the orders passed by the lower authorities are that the Assistant Commissioner has no jurisdiction to issue show cause notice where the allegation of suppression, fraud, etc. are made is not sustainable. The Commissioner (Appeals) has not gone into the merits of the case. In this compelling circumstances, the matter requires reconsideration by the adjudicating authority. Hence, the impugned order is set aside and the matter is remanded to the adjudicating authority for deciding afresh after affording an opportunity of hearing to the appellants.