The superintendent of central excise could not have issued the show cause notices on the ground of short-levy and short-payment of central excise duty due to suppression. The court allowed the respondents to proceed with the show cause notices without the words 'and suppressed such a fact from the department with an intent to evade payment of central excise duty' contained therein.

KA. SWAMI, ACTG. C. J.

( 1 ) THIS appeal is preferred against the order dated 26th march, 1992 passed by the learned single judge in writ petition 2280 of 1989.

( 2 ) PETITIONER in the writ petition is the appellant before us. It has sought for quashing the show cause notice bearing o. c. No. 1171 of 1988, dated 23-5-1988 issued by the superintendent of central excise, yeshwanthpur range, Bangalore under Section 11-a (l) of the central excise and salt Act, 1944 (hereinafter referred to as 'the act'. The show cause notice dated 23-5-1988 covers the period from 1-1-1988 to 30-4-1988. The same officer has also issued another show cause notice bearing o. c. No. 1867 of 1988, dated 16lh september, 1988 under the very same provision of the Act, which covers the period from 1st may, 1988 to August 1988. The appellant-petitioner has also challenged the said show cause notice. Thus, in the writ petition the show cause notices dated 23-5-1988 and 16-9-1988 issued by the superintendent of central excise, yeshwanthpur range, Bangalore are. Challenged.

( 3 ) THE learned single judge held that as the show cause notice were issued within a period of six months from the date of assessment, it did not affect the jurisdiction of the super intendent of central excise irrespective of the fact that the show cause notices averred short-levy by suppression. Accordingly, he dismissed the writ petition keeping it open to the appellant-petitioner to urge all the contentions before the authority who had issued show cause notices. Aggrieved by the decision of the learned single judge, the petitioner has come up in this appeal.

( 4 ) SRI chander kumar, learned counsel appearing for the appellant, contended that as the show cause notices were issued on the ground that short-levy was due to suppression they attracted the Provisions of sub-section (1) of Section 11-a of the Act, therefore, the authority competent to issue such notices was the collector of central excise and not the superintendent of excise hence, the show cause notice at annexurcs-c and d were issued without the authority of law - in other words, the show cause notices were issued by an officer who was not competent to issue.

( 5 ) ON the contrary, it was contended by Sri Ashok Harnahalli, learned standing counsel for the central government, that as long as the show cause notices were, issued within a period of six months from the date of assessment, whether it be on the ground of short-levy or whether that short-levy was due to suppression or for other reasons mentioned in the proviso or it was only a pure and simple short-levy, the superintendent of central excise being the central excise officer was competent to issue show cause notices asking the petitioner-appellant to appear before the assistant collector. It was also further contended that the collector of central excisecould issue show cause notice under sub-section (1) of Section 11-a of the act only if the short-levy was noticed beyond the period of six months. As long as it was noticed within a period of six months and a show cause notice was issued within a period of six months, the central excise officer was competent to issue such a show cause notice. Alternatively it was submitted by the learned standing counsel for the central government that in the show cause notices issued by the central excise officer as per Annexure-C and d, if the words 'and suppressed such a fact from the department with an intent to evade payment of central excise duty' are deleted, the internment and integrity of the show cause notices are not affected and it will be perfectly within the jurisdiction of the central excise officer, therefore, those words may be treated as deleted and the show cause notices may be allowed to be proceeded with without those words.

( 6 ) IN reply to the last argument, Sri Chander Kumar, learned counsel for the appellant, submitted that as the show cause notices were issued on the ground of shortlevy by way of suppression

Click Here to Read the rest of this document