Holding

The Superintendent had jurisdiction to issue the show‑cause notice and the Deputy Commissioner had jurisdiction to adjudicate, as Section 11A vests such powers in any Central Excise Officer and Board circulars cannot diminish statutory jurisdiction.

Summary

Mis. Pahwa Chemicals Pvt. Ltd. manufactured textile printing adhesives and claimed exemption under Notification No. 1/1993 (as amended) and Notification No. 16/1997. The Commissioner of Central Excise issued show‑cause notices alleging that the company used a foreign logo, suppressing facts and evading duty, and imposed a penalty. The company contended that the Superintendent who issued the notices and the Deputy Commissioner who adjudicated lacked jurisdiction under the Central Excise Act, relying on Board circulars that allocated such work to higher‑ranking officers. The Supreme Court examined the amendment to Section 11A of the Central Excise Act, which replaced the word “Collector” with “Central Excise Officer,” thereby extending jurisdiction to any officer defined under Section 2(b). It held that Board circulars are merely administrative directions and cannot curtail statutory jurisdiction. Consequently, the Superintendent was competent to issue the show‑cause notice and the Deputy Commissioner to adjudicate, and the appeals were dismissed.

Issues considered

Whether a Superintendent of Central Excise had jurisdiction to issue a show‑cause notice in a case involving alleged suppression of facts under Section 11A of the Central Excise Act, 1944.
Whether a Deputy Commissioner of Central Excise had jurisdiction to adjudicate the matter despite Board circulars directing such cases to higher‑ranking officers.

Legislation cited

Central Boards of Revenue Act, 1963
Central Excise Act, 1944s. 11A, s. 2(b), s. 37B
Central Excise Tariff Act, 1985

Subjects

Central Excisejurisdictionshow‑cause noticesuppression of factsBoard circularsadministrative directionspenalty

Judgment

A MIS. PA HWA CHEMICALS PVT. LTD.
v.
COMMISSIONER OF CENTRAL EXCISE, DELHI

FEB RU ARY 24, 2005

B [S.N. VARIA VA, DR. AR. LAKSHMANAN AND S.H. KAPADIA, JJ.)

Central Excise Act, 1944-Sections I IA, 2(b) & 37-Suppression of
facts-Non-payment ofduty-Proper officer to issue show-cause notice-Held,
C the Superintendent V.iho had issued the show-cause notices had jurisdiction to
do so-Board Circulars are only administrative directions which cannot take
away jurisdiction vested in a Central Excise Officer under the Act.

Appellants were engaged in manufacture of Textile Printing
Adhesives falling under Chapter Heading No. 3402 of the Central Excise
D Tariff Act, 1985. They claimed benefit of Notification No. I of 1993 as
amended and Notification No. 16of1997. Show-cause notices were issued
to them alleging that they were not entitled to the benefit of the
Notifications as they were using the logo of a foreign company. Duty and
penalty were demanded from them for having suppressed the facts and
for non-payment of duty. Appellants replied to the notices. However, the
E Deputy Commissioner confirmed the demand of Rs. 26,74;875.75 and
imposed a penalty of Rs. 26;00,000.
" I·
In appeal to this court, the only point agitated by the appellants is
that the Superintendent had·no jurisdiction to issue the show-cause-notices
F and that the Deputy Commissioner had no jurisdiction to adjudicate.

Dismissing the appeals, the Court

HELD : 1. The Superintendent had jurisdiction to issue show-cause-
notice and the Deputy Commissioner had jurisdiction to adjudicate.
(390-E)
G
2. Under Section l lA of the Central Excise Act, 1944 as it stood prior
to 14th May, 1992 whenever it was alleged that there was fraud, collusion,
wi\lfu1 misstatment or suppression of facts, the show-cause-notices could
only be issued by the Collector. However, with effect from 14th May, 1992
H 380
--
PAHWA CHEMICALS PVT. LTD. v. C.C.E. 381
Section 11 A was amended and the word "Collector" was deleted, and the A
words "Central Excise Officer" were incorporated. Thus, the Legislature
purposely and knowingly made a change whereby it was no longer
required that where allegations of fraud, collusion, willful misstatement
or suppression of facts are made, a Collector should issue a show-cause
notice or adjudicate the same. Now a Central Excise Officer also has the B
jurisdiction. Even an Additional Commissioner or an Assistant
Commissioner or a Deputy Commissioner or any other Officer of the
Central Excise or any person invested by the Board with the power of the
Central Excise Officer would be a Central Excise Officer.
(385-F-H; 386-A, C, DJ
c
3.1. The Board has no power to issue instructions or orders contrary
to the provisions of the Act or in derogation of the provisions of the Act.
The Board can only issue such direction as is necessary for the purpose
of and in furtherance of the provisions of the Act. If, therefore, the Act
vests in the Central Excise Officers jurisdiction to issue show-cause-notices D
and to adjudicate, the Board has no power to cut down that jurisdiction.
However, for the purposes of better administration of levy and collection
of duty and for purpose of classification of goods the Board may issue
directions allocating certain types of works to certain Offices or classes
of Officers. (389-G, H; 390-AJ
E
3.2. The Board Circulars dated 27th February, 1997 and 13th
August, 1997 are nothing more than administrative directions allocating
various types of works to various classes of Officers. These administrative
directions cannot take away jurisdiction vested in a Central Excise Officer
under the Act. At the highest all that can be said is Central Excise Officers, F
as a matter of propriety, must follow the directions and only deal with
the work which has been allotted to them by virtue of these Circulars. But
if an Officer still issues a notice or adjudicates contrary to the Circulars
it would not be a ground for holding that he had no jurisdiction to issue
the show cause notice or to set aside the adjudication. (390-B, q
G
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2350 of2002.

From the Judgment and Order dated 19.7.2001 of the Central Excise,
Customs and Gold (Control) Appellate Tribunal, New Delhi in F.O. No. Al
560/2001-NB(DB) in A. No. E/612 of 2001-NB(DB).
H
WITH
382 SUPREME COURT REPORTS [2005] 2 S.C.R.

A C.A. No. 406 of 2004.

A.K. Jain and Rajesh Kumar for the Appellant.

R. Venkataramani, A.Subba Rao, Hemant Sharma, Ashok Panigrahi,
Ms.V. Vijaylakshmi, P. Parmeswaran and B.K. Prasad for the Respondent.
B
The Judgment of the Court was delivered by --~

S.N. V ARIA VA, J. civil Appeal No. 2350 is filed against the Judgment
dated 19th July, 2001 passed by the Customs, Excise & Gold (Control)
Appellate Tribunal (for short 'CEGAT') and Civil Appeal No. 406 of 2004
C is filed against the Judgment dated 25th June, 2003 passed by CEGAT. Both
these Appeals can be disposed off by this common Judgment as the parties
are the same and the question involved is the same.

Briefly stated the facts are as follows :
D The Appellants are engaged in manufacture of Textile Printing Adhesives
falling under Chapter Heading No. ·3402 of the .Central Excise Tariff Act,
1985. The Appellants were claiming benefit of Notification No. I of l ~93 as
amended and Notification No. 16 of 1997. Show-cause-notices were issued
to them alleging that they were not entitled to the benefit of the Notifications
E as they were using the logo of "ATR" belonging to one M/s. ATR St. Moritz
A.G., Switzerland. Duty and penalty was demanded from them for having
suppressed the facts and non-payment of duty. The Appellants replied to the
notices. However, the Deputy Commissioner confirmed the demand of Rs.
26,74,875.75 and imposed a penalty of Rs. 26,00,000.
F The Appellants filed an Appeal before the Commissioner of Central
Excise (Appeals). They inter alia contended that, as suppression has been
alleged, the Superintendent who had issued the show-cause-notices was not
competent to issue the show-cause-notices and the Deputy Commissioner
was not competent to adjudicate. The Commissioner (Appeals) upheld ihe
G contention that the show-cause-notices were wro~gly issued and had been
wrongly adjudicated by the Deputy Commissioner in excess of powers vested
in him by the Central Board of Central Excise (for short 'Board'). The
Commissioner (Appeals) remitted the matter back with the following
directions:-

H "I. If the matter does not really merit invocation of suppression of
PAHWA CHEMICALS PVT.LTD. v. C.C.E. [VARIAVA . .I.] 383

.facts. willful misstatement, etc .. the superfluous words may be A
got deleted from the subject Show Cause Notices by issuing
suitable corrigenda and the matter may be re-adjudicated by the
competent adjudicating authority. The SSI Notification Nos. may
also be duly amended and substituted by Notificati9ns in force
during the periods of demand.

- II. If the charge of misstatement suppression of facts etc. is to be
retained, fresh Show Cause Notices may be issued in supersession
of the impugned Show Cause Notices in line with the instructions
B

contained in the two circulars referred to above.
III. While re-adjudicating the matter, the appellants' contention that C
vide their letter dated l.4.99, they had sent a specimen of the
label to be used by them and that this specimen shows that their
own brand name was more prominently displayed than the foreign
brand name and that the price should be treated as cum-duty
price should be examined in the light of the varfous CEGAT
decisions available on this subject." D
Aggrieved by the directions given, the Appellants filed an Appeal.
CEGAT by its Order dated 19th July, 2001 held that the Commissioner
(Appeals) should not have remitted the matter back with the above directions
and directed the Commissioner (Appeals) to decide the matter on merits.
CEGAT also held on merits that the Appellants were not entitled to the E
benefits of the above mentioned Notifications as they used the brand name

-
of another Company on their products. Aggrieved by this Order the Appellants
have filed Civil Appeal No. 2350 of 2002.

No stay was granted in this Appeal, therefore, the Commissioner F
(Appeals) adjudicated and confirmed ,the demand by an Order dated 17th
July, 2002. The Appellants then filed an Appeal before CEGAT wherein the
only contention taken was that the Superintendent had no jurisdiction to issue
show-cause-notices and the Deputy Commissioner had no jurisdiction to
adjudicate. CEGAT has dismissed the Appeal by the Order dated 25th June,
2003. The Appellants have filed Civil Appeal No. 406 of 2004 against this G
Order.

It must be mentioned that the only point agitated is that the
Superintendent had no jurisdiction to issue the show-cause-notices and that
the Deputy Commissioner had no jurisdiction to adjudicate. This is because
H
384 SUPREME COURT REPORTS [2005] 2 S.C.R.

A in an earlier round it has already been held by CEGA T, by its order dated
17th October, 2000 that the Appellants are not entitled to the benefit of the
Notificatio·ns. Against that Order Civil Appeal No. 4050 of 2001 is pending
before th is Court.

In order to consider this point it is necessary to see the relevant
B provisions.
Section I IA, as it stood, prior to 14th May, 1992 reads as follows :

"SECTION I IA. Recovery of duties not levied or not paid or short-
levied or short-paid or erroneously refunded. - (I) When any duty of
c excise has not been levied or paid or has been short-levied or short-
paid or erroneously refunded, a Central Excise Officer may, within
six months from the relevant date, serve notice on the person
chargeable with the duty which has not been levied or paid or which
has been short-levied or short-paid or to whom the refund has
·erroneously been made, requiring him to show cause why he should
D not pay the amount specified in the notice:

Provided that where· any duty of excise has not been levied or
paid or has been short-levied or short-paid or erroneously refunded
by reason of fraud, collusion or any willful mis-statement or
suppression of facts o.r contravention of any of the provisions of this
E
Act or of the rules made thereunder with intent to evade payment of
duty, by such person or his agent, the provisions of this sub-section
shall have effect, as if, for the words "Central Excise Officer", the
words "Collector of Central Excise" and for the words "six months" ..-
the words "five years" were substituted.
F
Explanation.- Where the service of the notice is stayed by an
order of a court, the period of such stay shall be excluded in computing
the aforesaid period of six months or five years, as the case may be.

(2) The Assistant Collector of Central Excise or; as the case may
G be, the Collector of Central Excise shall, after considering the
representation, if any, made by the person on whom notice is served
under sub-section (!), determine the amount of duty of excise due
from such person (not being in excess of the amount specified in the
notice) and thereupon such person shall pay the amount so determined.

H (3) For the purposes of this section,--
PAHWA CHEMICALS PVT. LTD. v. C.C.E. [VARIAVA, J.] 385
(i) "refund", includes rebate of duty of excise on excisable goods A
exported out of India or on excisable materials used in the
manufacture of goods which are exported out of India;

(ii) "relevant date" means, --

(a) in the case of excisable goods on which duty of excise has B
- not been levied or paid or has been short-levied or short-
paid

(A) where under the rules made under this Act a monthly
return, showing particulars of the duty paid on the
excisable goods removed during the month to which C
the said return relates, is to be filed by a manufacturer
or producer or a licensee of a warehouse, as the case
may be, the date on which such return is so filed;

(B) where no monthly return as aforesaid is filed, the last
date on which such return is to be filed under the said D
rules;

(C) in any other case, the date on which the duty is to be
paid under this Act or the rules made thereunder;

(b) in a case where duty of excise is provisionally assessed under
this Act or the rules made thereunder, the date of adjustment E
of duty after the final assessment thereof;

(c) in the case of excisable goods on which duty of excise has
been erroneously refunded, the date of such refund.

Thus, under Section 11 A, as it then stood, whenever it was alleged that there F
was fraud, collusion, willful misstatement or suppression of facts, the show-
cause-notices could only be issued by the Collector. As the Act itself laid
down a requirement, it has been held, in a number of authorities, that a show-
cause notice issued and/or adjudication done by an officer below the rank of
a Collector would be invalid as such an officer had no jurisdiction.
G
With effect from ~4th May, 1992 Section 11 A was amended and the
word "Collector" was deleted and the words "Central Excise Officer" were
incorporated. Thus, the Legislature purposely and knowingly made a change
whereby it was no longer required that where allegations of fraud, collusion,
willful misstatement or suppression of facts are made, a Collector should H
386 SUPREME COURT REPORTS [2005] 2 S.C.R.

A issue a show-cause notice or adjudicate the same. Now a Central Excise
Officer also has the jurisdiction.

Section 2(b) of the Act defines a "Central Excise Officer" as follows:

"2(b). "Central Excise Officer'~ means the Chief Commissioner of
B Central Excise, Commissioner of Central Excise, Commissioner of
Central Excise (Appeals), Additional Commissioner of Central Excise,
Deputy Commissioner of Central Excise, Assistant Co~missioner of
Central Excise or any other officer of the Central Excise Department,
or any person (including an officer of the State Government) invested
by the Central Board of Excise and Customs constituted under the
c Central Boards of Revenue Act, 1963 (54 of 1963) with any of the
powers of a Central Excise Officer under this Act."

Thus, even an Additional Commissione~ or an Assistant Collector or a Deputy
Commissioner or any other Officer of the Central Excise or any person
invested by the Board with the power of'the Central Excise Officer would be
D a Central Excise Officer. Even though the Legislature made this change, the
Board issued a Circular dated 27th February 1997 which reads as follows :

"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
E
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,
F 1944, Commissioners can adjudicate the cases of confiscation ,
and penalty without limit. This power has been delegated to
Deputy Commissioners by CBR Notification No. 12-C.Ex., dated
17th May, 1947, to Assistant Commissioners of Central Excise
by CBR Notification No. 8-C.E., dated 2nd September, 1944 and
to Superintendent of Central Excise by CBR Notification No. 93/
G
59, dated 28th November, 1959.
(ii) So far as the confirmation of duty is concerned, it is observed
. that Section 11 A empowers any Central Excise Officer to issue
the notice and detennine the duty due.,
H
PAHWA CHEMICALS PVT. LTD. v. C.C.E. [VARlAVA, J.) 387
(iii) Likewise, the "proper officer" i.e. Jurisdictional Central Excise A
Officer can issue notice and adjudicate the demands under Rule
9(2)/Rule 57-1/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 involved' as the criterion. B
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 willful mis-statement, C
suppression of facts, or contravention of Central Excise Act/
Rules made thereunder 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 :-

(Amt. of duty involved)
D

Commissioners Without limit
Addi. Commissioners Upto Rs. IO Iakhs

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

(Amt. of duty involved)

Commissioners Without limit
Addi. Commissioners/ Above Rs. 2 lakh F
Dy. Commissioners and upto Rs. l 0 lakhs

Assistant Commissioner Upto Rs. 2 lakhs

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 valuation and/or classification other than G
those covered under Category (A) above, will be adjudicated by the
Assistant Commissioners without any limit as hitherto, as also Modvat
disputes, other than those at category (A) above.

(C) Cases related to iss.\les mentioned under first proviso to Section
358(1) of Central Excise Act, 1944 would be adjudicated by the H
388 SUPREME COURT REPORTS [2005] 2 S.C.R.
l
A 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 and building
etc., liable to confiscation will not alter above powers of a~judication
B 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 notices will be issued by the same rank of
officers who will adjudicate them. Wherever the posts of I,
c Commissioner-I and Commissioner-II (Judicial) are in existence, the
r;
i
show cause notices will be issued by Commissioner:1.
' 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 and
D such notices will be issued by Assistant Commissioner when they are
adjudicated by Dy. Commissioner/Addi. 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.

E 6. The definition of expression "Commissioner'~ contained in Rule
2(ii) was amended by Notification No. 11/92-C.E. (N.T.), dated 14-
5-1992. 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 Addi. .Commissioner of
Central Excise shall lie to the Commissioner of Central Excise
F (Appeals) and not to the CEGAT.

7. All Previous Board's Circulars relating to issue of show cause
notices and· their adjudications except the Circular· No. 13/93-C.X.,
are hereby rescinded.

G. 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 t 5th 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. !..,-
H ~
I
I
PAllWA CHEMICALS PVT.LTD. v. C.C.E. (VARIAVA, J.] 389

9. Receipt of this Circular may please be acknowledged. A
IO. The trade and field formations may be suitably informed."

By clauses 3(A) and 5.1 of this Circular, the Board is directing that in cases
of fraud, collusion, willful misstatement or suppression of facts the notice
must be issued and adjudication must take place by the Commissioner without B
limit and by the Deputy Commissioner up to a limit of Rs. 10,00,000.
Thereafter the Board by another Circular dated 13th August, 1997 reiterated
the above position.

The Appellants place strong reliance upon these two Circulars and
submit that by virtue of these Circulars the Superintendent had no.jurisdiction C
to issue the show-cause-notices and that the Deputy Commissioner had no
jurisdiction to adjudicate.

As noted above, the Legislature has purposely omitted the word
"Collector" from the proviso to Section I IA and replaced it with the words
"Central Excise Officer". It is the Act which confers jurisdiction on the D
concerned Officer/s. The Act permits any Central Excise Officer to issue the
show-cause notices even in cases where there are allegations of fraud,
collusion, willful misstatement and suppression of facts. The question therefore
is: Can the Board override the provisions of the Act by issuing directions in
the manner in which it is done and if the Board cannot do so then what is E
the effect of such Circulars?

In order to consider .the powers of the Board one needs to see certain
provisions of the Act. Section 2(b) defines the "Central Excise Officer" and
it is mentioned therein that any Officer of the Central Excise Department or
any person who has been invested by the Board with any of the powers of F
the Central Excise Officer would be a Central Excise Officer. Thus, the
Board has power to invest any Central Excise Officer or any other Officer
with powers of Central Excise Officer. By virtue of Section 37B the Board
can issue orders, instructions or directions to the Central Excise Officers and
such Officers must follow such orders, instructions or directions of the Board.
However, these directions can only be for the purpose of uniformity in the G
classification of excisable goods or with respect to levy of duties of excise
on such goods. It is thus clear that the Board has no power to issue instructions
or orders contrary to the provisions of the Act or in derogation of the provisions
of the Act. The Board can only issue such direction as is necessary for the
purpose of and in furtherance of the provisions of the Act. The instructions H
390 SUPREME COURT REPORTS. [2005) 2 S.C.R.

A issued by the Board have to be within the four corners of the Act. If, therefore,
the Act vests in the Central Excise Officers jurisdiction to issue show-cause-
notices and to adjudicate, the Board has no power to cut down that jurisdiction.
However, for the purposes of better administration of levy and collection of
duty and for purpose of classification of goods the Board may issue directions
al locating certain types of works to certain Officers or classes of Officers.
B The Circulars relied upon are, therefore, nothing more than administrative
directions allocating various types of works to various classes of Officers.
These administrative directions cannot take away jurisdiction vested in a
Central Exctse Officer under the Act. At the highest all that. can be said is
Central Excise Officers, as a matter of propriety, must follow the directions
C and only deal with the work which has been allotted to them by virtue of
these Circulars. But if an Officer still issues a notice or adjudicates contrary
to the Circulars it would not be a ground for holding that he had no jurisdiction
to issue the show cause notice or to set aside the adjudication.

The Tribunal has in its order dated 25th June, 2003, inter alia, held as
D follows :-

" ..... Further, at the relevant time as per the provisions of Section
! IA(I) proper officer which includes Superintendent is competent to
issue the show cause notice. Board's Circular is only the administrative
direction which does not cause any prejudice to the Appellants ....."
E
In our view this is absolutely correct. We, therefore, see no infirmity
in the fodgment dated 25th June, 2003. ·We hold that the Superintendent had
jurisdiction to issue show-cause-notice and the Deputy Commis~ioner had
jurisdiction to adjudicate.

F As we have held that the concerned Officers had jurisdiction, we see
no infirmity in the Order dated 19th July, 2001 directing the Commissioner
(Appeals) to dispose of the Appeal. ·

In view of the above, we see no reason to interfere. The Appeals stand
dismissed. There will be no Order as to costs.
G
B.B.B. Appeals dismissed.