Powers of adjudication of the Central Excise Officers and other related issues- Instruction regarding

Circular No. 299/15/97- Central Excise

dated 27/2/97

F.No. 208/03/95-CX.6
Government of India
Ministry of Finance
Department of Revenue
Central Board of Excise & Customs

Subject : Powers of adjudication of the Central Excise Officers and other related issues- Instruction regarding-

I am directed to say that the Board has decided to review the powers of adjudication with the objective that cases are decided expeditiously, there is even distribution of workload and various doubts in this regard are clarified.

2. In this connection, the following facts and legal position has been taken into consideration:-

i) By virtue of Clause (a) of Section 33 of Central Excise Act 1944, Commissioners can adjudicate the cases of confiscation and penalty without limit. This power has been delegated to Deputy Commissioners by C.B.R. Notification No. 12 -Cex dt. 17th May 1947, to Assistant Commissioners of Central Excise by C.B.R Notification No. 8-C.Ex dt. 2nd September 1944 and to Superintendent of Central Excise by C.B.R. Notification No. 93/95 dt. 28th November 1959.

ii) So far as the confirmation of duty is concerned, it is observed that Section 11A empowers any Central Excise Officer to issue the notice and determine the duty due.

iii) Likewise, the “proper officer” i.e. Jurisdictional central Excise Officer can issue notice and adjudicate the demands under Rule 9(2)/ rule 57-I/ Rule 57U of Central excise Rules, 1944.

iv) In order to bring about uniformity and objectivity the Board issued instructions defining powers of adjudication of specified Central Excise Officers taking “duty involve” as the criterion.

3. Those show- cause – notices where adjudication orders are not passed upto 28th February, 1997, will be adjudicated as provided hereinafter:-

(A) All cases involving fraud, collusion, any wilful misstatement, suppression of facts, or contravention of Central Excise Act/ Rules made there under-with intent to evade payment of duty and / or where extended period has been invoked in show-cause-notices, (including Modvat cases, Rule 9(2) cases of this type) will be adjudicated by:-

(B)  In respect of cases which do not fall under the category (A) above, will be adjudicated by:-

Notwithstanding the powers of Assistant commissioners to adjudicate the cases involving duty amount upto Rs. 2 lakhs only as above, all cases of determination of determination of valuation and/ or classification other than those covered under Category (A) above, will be adjudication by the Assistant Commissioners without any limit as hitherto, as also Modvat disputes, other than those at category (A) above.

(C)    Cases related to issues mentioned under first proviso to Section 35B(1) of Central Excise  Act, 1944 would be adjudicated by the Addl. commissioners/ Dy. commissioners without any monetary limit, as was the position under Board”s Circular No. 13/93-CX dated 15th October, 1993.

4. The value of goods / conveyance, plants, machinery, land, building etc. liable to confiscation will not alter above powers of adjudication which will solely depend upon the amount of duty/ modvat credit involved on the offending goods.

5.1 In respect of cases covered under Category (A) of para 3 above, the show-cause-notice will be issued by the same rank of officers who will adjudicate them. Wherever the posts of Commissioner-I and Commissioner-II (Judicial) are in existence, the show-cause-notices will be issued by Commissioner-I

5.2  In respect of cases covered under Category (B) of para 3 above, show cause-notices will be issued by the Range Superintendent where they are to be adjudicated by the Assistant Commissioner when they are adjudicated by Dy. Commissioner Addl. Commissioner/ Commissioner.

5.3 In respect of cases covered under category (C) of para 3 above, show cause-notices will be issued by Assistant Commissioner.

6. The definition of expression “Commissioner” contained in Rule 2(ii) was amended by notification No. 11/92-CE(NT) dated 14.5.92. Accordingly, an Additional Commissioner of Central Excise is not a Commissioner for the purposes of appeal. therefore, appeal against the Order-in-Original passed by an Addl. Commissioner of Central Excise shall lie to the commissioner of Central Excise (Appeals) and not the CEGAT.

7. All previous Board”s Circulars relating to issue of show-cause -notices and their adjudications except the Circular No. 13/93-Cx are hereby rescinded.

8. An immediate exercise should be undertaken thereafter to take the stock of the pendencies as on 1st March and transfer of the relevant files and records to respective adjudicating authorities by 15th March, 1997 under proper receipt. This re-cast figures should be reflected suitably in the Monthly Technical Report of March, 1997 to be submitted in April, 1997.

9. Receipt of this Circular may please be acknowledged.

10.  The trade and field formations may be suitably informed.