ORDER
S. Kalyanam, Member (J)
1. This appeal has been filed by he Collector of Central Excise, Belgaum, Karnataka, against the order of the Collector of Central Excise (Appeals), Madras dated 5-8-1987. The short question that arises for consideration in the present appeal is whether the reasoning of the lower appellate authority under the impugned order that the order of the Assistant Collector of Central Excise, Davengere Division dated 18-3-1987 is without jurisdiction is correct under law or the Assistant Collector of Central Excise namely, the original authority is competent to pass the order in question. It is not necessary for us, having regard to the scope of the appeal, to go into the factual ramification. We would, therefore, refer to certain brief facts for purpose of considering the legal question. In this case, according to the Department a show cause notice was issued to the respondent invoking the proviso to Section 11A of the Central Excises and Salt Act, 1944 on 4-1-1985 and the show cause notice culminated in an order of adjudication at the hands of the Assistant Collector of Central Excise on 26-3-1985. The respondent herein preferred an appeal against the same before the Collector of Central Excise (Appeals), Madras who by his order dated 23-1-1986, set aside the order of the original authority and remanded the matter for de novo adjudication. The lower appellate authority in the order remand has observed as under:-
“…the order cannot be sustained and the same is set aside with directions to the Assistant Collector to decide the matter appropriately with reference to Section 11A and Rule 9 as may be relevant in the present case. The appeal is therefore disposed of with orders for de novo adjudication by the Assistant Collector.”
In pursuance of this order of remand, the Assistant Collector of Central Excise, without issuing any fresh show cause notice took up adjudication proceedings de novo and passed the order on 18-3-1987 fastening a duty liability on the respondent herein by invoking the longer period of limitation in terms of the proviso to Section 11A of the Central Excises and Salt Act, 1944. The respondent herein, aggrieved by the said order, preferred an appeal before the Collector of Central Excise (Appeals), Madras who passed the impugned order holding that consequent on the amendment to Section 11A of the Central Excises and Salt Act, 1944 with effect from 27-12-1985, it is only the Collector of Central Excise who would have competence and jurisdiction to proceed in adjudication in respect of matters pending adjudication where the longer period of limitation of five years is invoked. Inasmuch as the Collector of Central Excise is the competent authority to adjudicate the issue in relation to cases of suppression by invoking the longer period of limitation, the order passed by the Assistant Collector of Central Excise is without jurisdiction. In the impugned order the Collector of Central Excise (Appeals) in this context held as under: –
“The pending proceeding under the show cause notice dated 4-1-1985 was deemed to have been transferred with effect from 27-12-1985 to the Collector of Central Excise, Belgaum. Thus in spite of direction for de novo order by Collector (Appeals), the Assistant Collector had no jurisdiction to decide an issue invoking extended period of limitation under Section 11A of the Act, on and from 27-12-1985.
3. The present order, being passed without jurisdiction is set aside and the appeal allowed. The above order is without prejudice to the right of the proper adjudicating authority, to decide the issue under Section 11A of the Act.”
2. Shri Bhatia, the learned S.D.R. appearing on behalf of the appellant contended that notwithstanding the amendment to Section 11A of the Act with effect from 27-12-1985 conferring the jurisdiction exclusively on the Collector of Central Excise to adjudicate matters where the longer period of limitation is invoked that would not affect pending proceedings and, therefore, the order of the Assistant Collector of Central Excise cannot be said to be without jurisdiction. The learned S.D.R. also submitted that the opinion of the Law Ministry dated 17/18-3-1986 pursuant to a clarification sought by the Central Board of Excise and Customs would also support his view.
3. Shri K. Narasimhan, the learned counsel for the respondent, on the contrary, contended that under law on and from 27-12-1985 the Assistant Collector of Central Excise would not have jurisdiction to adjudicate cases where the longer period of limitation, in terms of proviso to Section 11A of the Central Excises and Salt Act, 1944, is invoked. The learned counsel further submitted that by virtue of amendment, proceedings pending shall stand transferred on the commencement of the amended Act to the Collector of Central Excise. Shri Narasimhan further submitted that in the present case provisions of Section 11A were not invoked, much less to the proviso thereunder and what was invoked was only Rule 9(2) which only prescribes the period of limitation.
4. We have carefully considered the submissions urged before us. Even assuming for the purpose of argument that the proceedings were pending before the Assistant Collector of Central Excise, having regard to the admitted fact that the longer period of limitation was invoked against the respondent, it is only the Collector of Central Excise who would be competent to sit in an adjudication by virtue of the amendment to Section 11A of the Central Excises and Salt Act, 1944 with effect from 27-12-1985. The reasoning of the lower appellate authority in this regard in the impugned order extracted above is unassailable and cannot be taken exception to. We are also fortified in this view of ours by the general instructions issued by the Central Board of Excise and Customs in their F. No. 6/57/88-CX.1, dated 4-1-1989 (Circular No. 1/89). For purpose of convenience, we would like to extract the instructions of the Central Board of Excise and Customs below:
” I am directed to say that doubts have been expressed regarding the correctness of the instructions contained in Board’s letter F. No. 15/19/86-CX.I, dated 5-6-1986 by some Collectors.
2. The matter has been examined in the Board. The said instructions dated 5-6-1986 were issued with reference to the unamended Section 11A of the Central Excises and Salt Act, 1944, as it existed prior to its amendment vide Central Excises and Salt (Amendment) Act, 1985. These instructions are not relevant after the aforesaid amendment of Section 11A.”
Therefore, at the threshold we hold that the order of the Assistant Collector of Central Excise is without jurisdiction and is sustainable in law. In this view of the matter, we uphold the impugned order appealed against and dismiss the appeal. At this stage Shri Narasimhan, the learned counsel for the respondent sought leave to withdraw the cross-objection. Leave is granted and the cross-objection is dismissed as withdrawn. The appeal has been disposed of accordingly.