G.R. Sharma, Member (T)
1. In the impugned order ld. Commissioner has held:
“To sum up, therefore, the credits taken on job-works, higher notional credits taken on Special Excise Duty, and those taken without producing original duty paying documents, on tools and on refractory bricks and foundry flux, during the period Jan.-Mar., 1990 deserve to be disallowed/recovered while the credits taken on Acetylene, Oxygen, Argon, Nitrogen deserve to be allowed.
I also observe that the party had knowingly availed themselves of inadmissible credits and therefore, imposition of penalty on them is a logical corrol-ory”.
Being aggrieved by this order, the assessee has filed the captioned appeal.
2. The facts of the case in brief are that the appellants are engaged in the manufacture of Sophisticated and Heavy, Electrical & Mechanical Equipment for Generation and Transmission of Electrical Energy. The applicant has been issuing inputs as such or processed one under the erstwhile Rule 57F(2) to their sub-contractors for job-work and for returning the same to the applicant. The appellant has also been procuring parts of their main equipment from their sub-vendors and also importing certain parts. A SCN was issued by the Range Supdt. asking them to explain to the Asstt. Commissioner as to why an amount of credit of duty paid on goods should not be recovered under Rule 57-I of Central Excise Rules, 1944 and why penalty under Rule 209 read with Rule 210 should not be imposed upon them. The matter was adjudicated by the ld. Commissioner confirming the demand.
3. Shri Z.U. Alvi, ld. Counsel appearing for the appellants submits that SCN lacked jurisdiction inasmuch as the Supdt. of Central Excise was not competent to issue a notice. He submits that Rule 57-I provides that a SCN may within six months from the date of filing the return proper officer may serve notice on the manufacturer or the assessee. He submits that Rule 2(14) of the Central Excise Rules defines proper officer, that Asstt. Commiss-ioner is the proper officer for issue of SCN under Rule 57-I. He submitted that the Central Board of Excise & Customs has issued instructions that a SCN should be issued by an officer who is to adjudicate the case. He submits that the Supdt. of Central Excise is not competent to issue a SCN either in terms of Rule 57-I or in terms of Rule 2(14) of the Central Excise Rules or in terms of the clarification given by the Central Board of Excise & Customs. He therefore, submits that the SCN is without jurisdiction. He, therefore, prays that the appeal may be allowed.
4. Shri S.K. Das, ld. DR reiterates the findings of the authorities below.
5. We have heard the submissions of the ld. Counsel for the appellant and the ld. DR for Revenue. We note that the appellant had taken up the question of jurisdiction in reply to the SCN. This aspect was not examined by the ld. Commissioner in detail We note that in the instant case, SCN was issued by the Range Supdt. We note that the Range Supdt. is not the proper officer in terms of Rule 57-I read with Rule 2 of the Central Excise Rules, 1944. We, therefore, hold that the’ SCN was ab initio void. In the circumstances, the appeal is allowed. Consequential Relief, if any, shall be admissible to the appellants.