Per C.N.B. Nair :

This appeal is directed against Order in Appeal No. HKS(659)CE- 2001 dated 6/13.8.2001 of the Commissioner of Customs (Appeals), New Customs House, New Delhi. The subject of that appeal was letter C.No. GL-3/LAR/Hyd/22/2001/531 dated 21.3.2001 of the Superintendent of Central Excise, Dharuhera. That letter read as under:-

Sub: Audit of the unit from 10.1.2001 to 12.1.2001.

"During the course of the audit of your unit for the period from 1998-99 to 1999-2000 short payment of duty to the tune of Rs. 2,13,615/- has come to the notice on the grounds as per the Annexure attached.

The grounds of the objection are substantiated as per the ruling of the CEGAT in case of M/s. Escorts J.C.B. Limited Vs. CCE Delhi and accordingly you are requested to pay the short levy and deposit particulars be intimated to this office so that higher authorities are informed accordingly.

Yours faithfully,

Sd/- Superintendent.

Central Excise Range, Dharuhera".

2. The Commissioner has disposed of the appeal of the assessee stating that no appeal lies against the letter of the Superintendent. The reasoning of the Commissioner as under:-

"I have gone through the records of the case very carefully. I observe that the appellants had been requested to pay the amount of Rs. 2,13,615/-. The said request letter issued by the Supdt. of Central Excise has pointed out that prima facie short levy of Rs. 2,13,615/- had arisen, since, the said issue was squarely covered by the judgment of Hon'ble Tribunal in the case of Escorts JCB Ltd. Vs. CCE reported in 2000 (89) ECR 93 (Tribunal). No appealable order has been passed/issued by the Supdt."

3. Though the case is posted today for consideration of stay application only, in the facts the case, we feel that the appeal itself can be disposed of. Accordingly, after hearing both the sides the following order is passed.

4. The Counsel for the appellant submits that the order of the Superintendent "had requested to pay short levy" as indicated in the letter. He, therefore, points out that case where the Superintendent was proceeding to recover an amount which has been short levied. The assessee was rightly aggrieved by the order since it had been passed without following the procedure for recovery of short levy. He, therefore, submits that the Commissioner was in error in holding that no appeal lies against the letter of the Superintendent. As against these submissions on behalf of the appellant, learned SDR points out that since the Commissioner has already observed that the request letter is in the nature of an initiation taken for recovery of duty short paid which is not an appealable order, the present appeal is not maintainable.

5. We find that a similar case had come up before this Tribunal in the case of M/s. Shree Baidyanath Ayurved Bhawan Ltd. Vs. Commissioner of Central Excise, Patna, 2001 (44) RLT 366 (CEGAT)=2001 (129) ELT 780 (Tri-Del) and the Tribunal set aside the demand with the following observations:

"4. Communication sent by the Superintendent demanding the duty amounting to Rs. 60,077.73 cannot be sustained in law because it is not the outcome of an order of the adjudication preceded by issue of show cause notice. On this short ground the order is set aside. We hasten to add that this will not debar the department in initiating proceedings in accordance with the law for raising the duty demand on the product manufactured by the appellants".

6. Whether letter of Superintendent has been issued according to proper provisions of law or not, there is no denying that a duty demand has been made on the appellant assessee. He is therefore, rightly aggrieved by the demand and is entitled to be heard in appeal. Admittedly, the demand of duty has been made by the Supdt. Without following the procedure laid down in the relevant legal provision, i.e. Section 11A of the Central Excise Act. Such a demand cannot be allowed to stand. Therefore, following our previous order in the case of Shree Baidyanath Ayurved B