1. All the captioned 72 Appeals were taken up together as the issue involved in all these Appeals was the same, therefore, they are being disposed of by this common order.
2. The short point for determination in these appeals is whether the Asst. Commissioner could adjudicate the cases where the amount of duty was more than Rs. 50,000/-. The facts leading to the present cases are that the Commissioner (Appeals) held that in pursuance of the Circular No. 3/92-CX. 6, dated 14-5-1992 and Circular No. 299/15/97-CX., dated 27-2-1997, the powers of the Assistant Commissioners were administratively restricted. Against this finding, the Revenue has filed the captioned appeals.
3. We have heard Shri P.K. Jain, the ld. SDR for Revenue and S/Shri J.S. Agarwal, Ravindran, K.K. Anand, Rajesh Kumar and Ms. Smriti Mishra, ld. Advocates for the Respondents.
4. We note that powers of adjudication including confiscation and imposition of penalty are governed by Section 33 of the Central Excise Act, 1944. Under the proviso in the Act, the Central Government is empowered to confer these powers on any Officer. In pursuance of these Orders the Government of India issued Notification No. 8-CX., dated 2-9-1944 and subsequently Notification No. 98/59, dated 28-11-1959 conferring the power of confiscation and imposition of penalty without limit. However, for administrative purposes, the Government of India has been issuing instructions from time to time under Rule 233 of the Central Excise Rules restricting these powers to certain limits. A question, therefore, arose whether the Asst. Commissioner could adjudicate cases beyond the restrictions imposed by the Central Board of Excise and Customs by issuing these administrative instructions.
5. It will be noted here that Section 37B is another Section which authorises the Government of India to issue certain instructions and directions. However, these instructions and directions are confined to cases pertaining to value and classification. These directions are issued to observe uniformity in these matters in all the Collectorates.
The Central Board of Excise and Customs is also authorised to issue supplementary instructions under Rule 233. These supplemental instructions are administrative measures. Therefore, the issue for determination before the Bench in a number of cases earlier also arose as to whether the Notifications issued under Section 33 of the Central Excise Act, 1944 shall prevail over the supplemental instructions issued by the Central Board of Excise and Customs under Rule 233.
Needless to say that the Notification has greater application and will always over-ride over supplemental instructions. Supplemental instructions issued under Rule 233 are in the nature of administrative instructions whereas powers delegated under Notifications are in the nature of statutory authorisations. Therefore, non-observance of the administrative instructions at best can be termed as administrative irregularity in view of the fact that the Asstt. Collector/Asstt.
Commissioner is authorised to exercise the powers without limit in terms of the Notification. Having regard to the above view, we hold that non-observance of the terms indicated in the aforesaid Circular at best can be termed as administrative irregularity. However, the exercise of the powers under Section 33 does not suffer from that infirmity. We, therefore, hold that there is no legal infirmity in the Orders passed by the Asstt. Collector/Asstt. Commissioner. In this view of the matter, we consider all these cases are fit for remand. The Appeals are, therefore, remanded to the Commissioner (Appeals) concerned for consideration of the cases on merits. In the result, the Appeals of the Revenue are allowed by way of remand.