ORDER
J.H. Joglekar, Member (T)
1. On hearing both sides on the stay of recovery of duties confirmed and penalty levied, it appears that the appeal itself can be taken up for disposal.
2. Show Cause Notice dated 17-5-2000 was issued from the Office of
Superintendent, Central Excise Range VI-Taleja, Mumbai VII Commissioner-
ate, to the applicants, demanding duty of Rs. 49,87,449/-. The short levy was
from 1-11-99 to 30-4-2000. The proviso to Section 11A of the Central Excise
Act, 1944 was invoked.
3. Before the adjudicating Deputy Commissioner, the assessees claimed that the Show Cause Notice was not valid inasmuch as it was not issued with the approval of the jurisdictional Commissioner. Deputy Commissioner’s observations are as under: –
“As regards the assessee’s contention that the SCN was not issued as per Law, I find that the SCN was approved by the Deputy Commissioner as per the Draft SCN submitted by the Range Superintendent vide letter dt. 8-5-2000. The same was processed by the Division office vide note dated 10-5-
2000 and approved by the then Deputy Commissioner on 12-5-2000. It is clear that the said SCN was proposed and approved before the Finance Act was approved w.e.f. 12-5-2000. The approved SCN was sent to the Range Superintendent for issue and issued on 17-5-2000. It is clear that the SCN was issued after approval and duly signed by the Superintendent of Central Excise, Range-VI, Taloja Division.”
4. In the appeal memorandum the same plea was reiterated. The Commissioner (A) did not take cognizance of this ground at all while upholding the earlier order.
5. Before us, apart from merits of the case, the legality of the show cause notice is agitated. The relevant portion of the cited Section reads as below :-
“Provided further that where the amount of duty which has not been levied or paid or has been short-levied or short-paid or erroneously refunded is one crore rupees or less a notice under this sub-section shall be served by the Commissioner of Central Excise or with his prior approval by any officer subordinate to him.
Provided also that where the amount of duty which has not been levied or paid or has been short-levied or short paid or erroneously refunded is more than one crore rupees, no notice under this subsection shall be served without the prior approval of the Chief Commissioner of Central Excise.”
6. The show cause notice was “served” after the amendment was incorporated, and it was not approved prior to that date by the jurisdictional Commissioner. The show cause notice issued was therefore not in terms of this proviso.
7. Since the show cause notice was not as per law, the legality of
proceedings subsequent thereto cannot be upheld. On this finding we allow
the appeal with consequential benefit.