ORDER
G.A. Brahma Deva, Member (J)
1. Shri Krishna Murthy, Advocate appearing for the appellants submitted that issue relates to Modvat Credit. He said that apart from the merits of the case, the Assistant Commissioner was not just right in delegating the power to the Superintendent to quantify and to work out the demand. In this context, he drew my attention to the ultimate para of the order-in-original which reads as under:-
Therefore, under the provision of Rules 57-1 of Central Excise Rules, 1944, I order that any such credit earned on the inputs which are exclusively used in refrigerators of 100 Its., capacity which has been utilized by the assessees to pay duty on refrigerators of different capacities shall be paid back by the assessees to the Government by debiting an equal amount in their RG 23-A or if there is no credit balance therein through debiting in the P.L.A. irregularly availed by the assessee during 6 months prior to the date of receipt of the show cause notice by the assessees within one month of receipt of the demand for the relevant period from the Superintendent of Central Excise, Nandaiur without fail. I also direct the assessees to maintain the separate RG 23-A part I and II registers at least for those distinctly identifiable inputs in future.
Further he specifically drew my attention to the portion under copy to Superintendent of Central Excise, Nandalur, which is as under:
He is directed to calculated the amount of credit irregularly availed by the assessee for the period under dispute as per the annexure enclosed to this order within 10 days of receipt of this order and intimate the demand particulars and realisation particulars of the same.
2. Apart from this he said that in the Show-cause notice demand was proposed to the extent of Rs. 3,84,000 whereas in the impugned order duty was confirmed to the extent of Rs. 8,23,893 which is contrary to the provisions of the Act since order has gone beyond the Show Cause notice. He fairly conceded that those two points were not raised before the Commissioner (Appeals). However, since the issues being a point of law, he submitted that he may be permitted to raise these points at this stage.
3. Heard Shri Narasimha Murthy learned DR for the Revenue.
4. I have carefully considered the matter. Tribunal has been consistently taking the view that the adjudicating authority is alone competent to quantify the duty and he is not empowered to delegate that power to the subordinates. Furthermore the adjudicating authority was also not just right in enhancing the demand as against the amount proposed in the show-cause notice since no notice has been issued for further enhancement. In view of these factual discrepancies, matter is remanded to the Assistant Commissioner to examine the entire issue afresh. Thus this appeal is disposed of in the above terms.