Per K.K. Agarwal : The brief facts of the case are that the respondents were availing SSI exemption and paying the duty on monthly basis by the 15th of the succeeding month. It was observed that they have failed to discharge the duty twice on due dates. Therefore the facility for payment of duty on monthly basis was suspended by the divisional Assistant Commissioner and the assessee was directed to discharge the duty liability on consignment basis till such date when all dues were paid. The assessee was required to remove the goods on payment of duty for each consignment by debiting the same from account current only during the period 14.06.2001 to 14.08.2001. However the respondents paid the duty by debiting the Cenvat credit account. Therefore the Show Cause Notice was issued to the respondents demanding Rs. 65,092/ - for contravention of the erstwhile Rule 173G (1) (e) (d) as the clearances during the period were deemed to have been made without payment of duty. The demand was confirmed by the Assistant Commissioner who also impose a penalty of Rs. 5,000/-. However on appeal, the order was set aside by the Commissioner (Appeals) on the ground that there was no provisions in the erstwhile Rule 173GG (1) (4) that the duty liability was to be paid only through account current during the period when their facility to pay duty on monthly/fortnightly basis was forfeited.

2. Learned JDR submits that the order passed by the Commissioner (Appeals) is incorrect as Rule 173GG was omitted w.e.f. 01.04.2000 by Notification No. 11/2000 dated 01.03.2000 and therefore during the relevant period the applicable rule was Rule 173G. In Rule 173G (1) (e) it has been clearly provided that during such forfeited period manufacture was required to pay excise duty for each consignment by debit to account current and therefore the Commissioner (Appeals) has wrongly set aside the demand by relying upon non-existent rule.

3. The learned Advocate for the respondents however submits that the show cause notice and the order-in-original clearly states that they have contravened provisions of Rule 173GG (4) and were required to pay the duty from account current only under Rule 173GG (1) and therefore the order cannot be sustained, once the provisions have been wrongly quoted.

4. I have considered the submissions. I find that in the show cause notice the charges against the respondents have been clearly spelt ou t and accordingly mere mention of wrong provision of law when power exercised is available even though under a different provision is not by itself sufficient to invalidate exercise of that power. This view is supported by Supreme Court decision in the case of Collector of Central Excise, Calcutta Vs. Pradyumna Steel Ltd. -1996 (82) ELT 441 (SC). Similarly the Tribunal in the case of LVR DONG-IN Stone Ltd. Vs. Collector of Customs, Madras -1994 (72) ELT 377 (Tribunal) held that quoting of wrong section or rule in show cause notice or order not fatal so long as nature of violation correctly brought out. In view of the same, I set aside the order of Commissioner (Appeals) and restore the order of the lower authority.