ORDER
Gowri Shankar, Member (T)
1. The appellant imported on 28.7.1992, a consignment of urethane elastomer (CA-128) claiming the benefit of the exemption contained in notification 172/92. The goods were cleared by granting the benefit of the exemption. Notice was issued to the importer on 5.1.1993, followed by a corrigendum dated 11.2.1993. The notice alleged short recovery on the ground that the benefit of the exemption was not available to the goods. It narrated that verification of the manufacturer’s literature militated against granting benefit. The notice invoked the provisions of Section 28 of the Act and alleged wilful misstatement of the description of the goods and suppression of the actual chemical composition at the time of importation to justify applicability of the proviso of that section. The Assistant Commissioner, whose order has been confirmed by Commissioner (Appeals) confirmed the demand. Hence this appeal.
2. The sole contention of the counsel for the appellant is that since the notice that invoked the extended period contained in the proviso to Section 28(1) of the Act, the Commissioner ought to have signed the notice as provided by law, in the light of the instructions issued by the Board and communicated to the trade by means of trade notice. Therefore, the notice issued by the Assistant Collector of Customs, is without jurisdiction. He cites the judgment of the Supreme Court in CCE v. Oil & Natural Gas Commission 1998 (103) ELT 3 followed by its subsequent judgment in CCE v. Prick India Ltd (in civil appeal 4421-4422/2000).
3. The departmental representative reiterates what the Commissioner (Appeals) has said in his order by dealing with the same point made before him, that citing of wrong provision of law does not invalidate the order which is otherwise within the power of authorities working under the Act.
4. While making this observation, the Commissioner (Appeals) relyned on the judgment of the Supreme Court in State of Karnataka v. Muniyalla AIR 1985 SC 470. However, the judgment of the Supreme Court in CCE v. Oil & Natural Gas Commission had not been pronounced when the matter was decided by the Commissioner (Appeals). In that judgment, the Court specifically considered the very point that is before us, the validity of a notice issued by an Assistant Collector invoking the extended period when the law required to be issued by the Collector and has found that the notice was not issued by the competent authority. The ratio of that judgment binds us. It only remains to add that by virtue of the public noticed that was issued communicating to the public the decision to issue notice in such cases by the Commissioner the department cannot take a contrary stand. It has therefore to be held that this notice issued by the authority lower than the Collector was not valid.
5. The appeal is accordingly allowed and the impugned order set aside.