Judgment:
1. In this appeal filed by the Revenue being aggrieved with the order-in-appeal dated 20-11-1997 passed by the Commissioner of Central Excise (Appeals), New Delhi, the matter relates to the jurisdiction of the Asstt. Commissioner of Central Excise in adjudicating the Modvat matter in which the credit involved was Rs. 1,19,495/-. The Commissioner of Central Excise (Appeals), New Delhi, had agreed with the submissions made by the appellants' counsel that the Asstt.
Commissioner of Central Excise had exceeded his jurisdiction in deciding the matter. The appellate authority did not give any finding on the merits of the case.
2. When the matter was called, no one appeared for the respondents, M/s. Mukti Transformers Ltd. Earlier the matter had come up on 27-7-1998. At that time also, no one appeared for the respondents. As the facts are not disputed and the question involved is only of jurisdiction, I am proceedings to deal with the matter on merits after hearing Shri Shiv Kumar, JDR, who is present for the appellants/Revenue.
3. Shri Shiv Kumar, JDR, submitted that the Asstt. Commissioner of Central Excise was competent to adjudicate the modvat matters in which the amount of duty involved was upto Rs. 2 lakh. He referred to the Central Board of Excise & Custom's Circular No. 299/15/97, dated 27-2-1997 wherein the Central Board of Excise & Customs had clarified that those show cause notices were adjudication orders are not passed upto 28-1-1997 will be adjudicated as provided in that Circular. In category A, all cases involving fraud, collusion, any wilful mis-statement, suppression of facts or contravention of Central Excise Act/Rules made thereunder with intend to evade payment of duty and/or where extended period had been invoked in the show cause notices, were covered. In respect of cases which did not fall under the category A above, were to be adjudicated as under : 4. I have carefully considered the matter. I find that the matter is covered by the Tribunal's decision in the case of C.C.E., Jaipur v. Jay Dee Agro Chemicals Ltd. and Ors., Appeal No. E/172/97/NB. The Tribunal vide their Final Order No. A/188 to 213/98-NB, dated 19-3-1998 [1999 (109) E.L.T. 819 (Tribunal)] had after discussing the legal provisions and the Board's Circulars come to a decision that the powers conferred on the Asstt. Collectors under earlier circulars dated 14-5-1992 and 27-2-1997 were in the nature of administrative provisions and no legal infirmity was there if those powers were exceeded.
5. I find that in the Circular dated 27-2-1997, it has been clearly stipulated that the revised instructions will be applicable where show cause notice had not been adjudicated up to 28th January, 1997.1 find that in this case the adjudication order was passed by the Asstt.
Commissioner of Central Excise, Jodhpur, on 21-2-1997. According to the Circular dated 27-2-1997, the Asstt. Commissioner could adjudicate the modvat matters after 28-1-1997 where the amount of duty involved was upto Rs. 2 lakh.
6. I, therefore, consider that the observations of the learned Commissioner of Central Excise (Appeals) with regard to jurisdication were not correct.
7. The appellate authority had not discussed the matter on merits and while noting the submissions made by the appellants had decided the matter on the question of jurisdiction. I, therefore, consider it to be a fit case for remand to the jurisdictional Commissioner of Central Excise (Appeals) who should go into the merits of the case and after giving an opportunity to the appellants pass a speaking appealable order, as per law.