ORDER

1. When this appeal came up for hearing on 22-9-1988, the appellants made a preliminary point that the proceedings before the Collector, who had passed the impugned order aforesaid, were without jurisdiction and that the three show cause notices issued to the appellants by the authorities were null and void. The Bench heard both sides on the preliminary point and reserved orders thereon. The following order recorded by the Bench disposes of the preliminary point of the appellants.

The facts, insofar as they are material for disposal of the preliminary point, are that during the course of a survey of the Industrial Estate, in which the appellant unit is located, Central Excise Officers noticed that the appellants were engaged in manufacture of forged brass shapes and Sections [falling under Item 26A (3) (ii) of the erstwhile Central Excise Tariff] without a Central Excise Licence and that they had been removing the said articles without payment of Central Excise duty and without following the statutory Central Excise requirements. After investigations, the authorities served the following three show cause notices on the appellants :

(1) Show cause notice dated 6-10-1985 for the period from 1-8-1984 to 30-4-1985.

(2) Show cause notice dated 21-11-1985 for the period from 1-5-1985 to 31-10-

1985.

(3) Show cause notice dated 20-3-1986 for the period from 1-11-1985 to 28-2-1986.

All the show cause notices were signed by the Superintendent of Central Excise and they asked the appellants to show cause to the Addl. Collector why duty should not be demanded from them under Rule 9(2) of the Central Excise Rules, 1944 read with proviso to Sub-section (1) of Section 11A of the Central Excises and Salt Act, 1944 and why penalty should not be imposed on them under Rule 173 Q read with Rules 9(2), 52A and 226 of the same Rules. The show cause notices, inter alia, alleged that the appellants had "suppressed the fact of production and clearance of the said goods falling under T.I 26A(3) (ii) by them with an intent to evade the payment of duty". The appellants replied to the show cause notices and denied the allegations. The Additional Collector held a hearing on 5-2-1986. In the meanwhile, Section 11A of the Act had been amended with effect from 27-12-1985 the effect of which was that case alleging suppression of fact etc. and invoking the extended time limit of 5 years for the demand of duty were to be adjudicated by the Collector. Accordingly, the proceedings pending before the Additional Collector were transferred to the Collector. The Collector held a fresh hearing on 25-9-1986. On adjudication, he held the appellants guilty and demanded duty of Rs. 1,72,017.16 but refrained from imposing any penalty. Aggrieved, the appellants filed the subject appeal before this Tribunal

2. The preliminary submission of the appellants is that the proceedings before the Collector were without jurisdiction and that three show cause notices were null and void for the following reasons:

(1) Amendment of Section 11A, which came into effect on 27-12-1985, authorised transfer of only those proceedings which were pending before the Asstt. Collector; since the proceedings in this case were pending before the Additional Collector, their transfer to the Collector was without jurisdiction.

(2) The amendment of 27-12-1985 further required that show cause notices invoking the proviso to Section 11A(1) for the extended time limit of 5 years had to be issued by the Collector; since in the present case the three show cause notices had been issued by the Superintendent of Central Excise, fresh show cause notices ought to have been issued by the Collector after 27-12-1985. In saying so, the appellants rely on 1988 (34) ELT 442 (Gujarat) - M/s. Gujarat State Fertilizers Company Ltd. v. Union of India and Ors..

(3) The Collector was not empowered under the Act to have the proceedings transferred to himself from the Additional Collector.

3. Before dealing with the points made by the appellants, we would like to clarify a few basic facts which are relevant for the discussion. From the particulars of the three show cause notices as given in paragraph 1 above, it is evident that the third show cause notice dated 20-3-1986 was issued within the normal time limit of six months.

4. The second show cause notice dated 21-11-1985 largely covered the period which fell within the normal time limit of six months and only the first 21 days of May 1985 fell outside this normal time limit. The first show cause notice dated 8-10-1985, however, largely covered the period beyond six months. So, the third show cause notice dated 20-3-1986 is strictly not involved in the present controversy.

5. Secondly, we find that the three show cause notices were not notices for short-levy/non-levy of duty under Section 11A as such. They were, in fact, notices dealing with the alleged clandestine manufacture and removal of the goods and were issued under the penal provisions of Rules 9(2) and 173 Q.

6. Thirdly, while under Section 11A the demand for duty for a period beyond six months had to be issued and adjudicated by the Collector, under Rule 9(2) the demand could be made by the "proper officer". Under Rule 173 Q (2), confiscation and penalty could be adjudged by "the officer adjudging the case under Section 33 of the Act". It is nobody's case here that the Collector and Additional Collector were not proper officers under Rule 9(2) or that they were not appointed as Adjudicating Officers under Section 33. In fact, under Rule 2(ii), 'Collector', by definition, included Additional Collector. Thus, for discharging functions under the Central Excise law, Additional Collector and Collector were placed on par -1983 ELT 1057 (CEGAT - Larger Bench) - 5. Kumar and Ors. v. Collector of Central Excise and MANU/WB/0277/1988 : 1988 (37) ELT 347 (Calcutta) -Bansal Industrial Gases (Bihar) Ltd. v. Collector of Central Excise.

7. Now, when we see the preliminary objection of the appellants in the light of the above facts, we find no force in them.

8. Their objections proceed on the assumption that the proceedings before the Collector were proceedings under Section 11A. This assumption is factually incorrect. The proceedings were not under Section 11A. They were really penal proceedings under Rules 9(2) and 173Q for the alleged clandestine manufacture and removal of the goods without a licence and without payment of duty and in contravention of the statutory procedures prescribed by a host of other Rules cited in the show cause notices. Section 11A was also, no doubt, cited in the notices alongwith Rule 9(2) but this was for the limited purpose of applying time limit for the demand of duty under Rule 9(2) because this Rule required the demand to be made "within the period specified in Section 11A of the Act." Thus, the same time limit as in Section 11A was applicable to the demands for duty made under Rule 9(2). But that did not mean that the proceedings themselves became as under Section 11A and not under Rules 9(2) and 173Q. However, even if it be assumed that if the extended time limit was applied, the other attendant requirements of Section 11A had also to be fulfilled, still we find no merit in the preliminary objections taken by the appellants. In the succeeding paragraphs we shall deal with each of their objections item-wise.

9. The first objection of the appellants is not - as to why the notices, as originally issued, asked the appellants to show cause to the Additional Collector instead of to the Assistant Collector, as required by Section 11A(2); their objection is as to why the adjudication proceedings were transferred from the Additional Collector to the Collector when Section 8 of the Central Excises and Salt (Amendment) Act, 1985 (79 of 1985) required transfer of proceedings pending before the Assistant Collector only. The objection is not valid for two reasons. First, what happened on 27-12-1985 was that by amendment of Sections 11A(1) and (2), Collector became the competent adjudicating authority in cases in which proviso to Section 11A(1) (for extending time limit of 5 years) had been invoked. Since in the present case the said proviso had been invoked, there was nothing wrong in transferring the proceedings to the Collector. Secondly, both the Additional Collector and the Collector had jurisdiction to adjudicate in the matter. Both were proper officers. Both were competent adjudicating authorities under Section 33 and further under Rule 2(ii) 'Collector' by definition, included Additional Collector as well. The appellants cannot complain of any prejudice or illegality so long as their case was adjudicated upon by Anr. officer having jurisdiction after due notice to them and after granting them a fresh personal hearing. There is no merit in the appellants' point that the proceedings before the Collector were without jurisdiction.

10. The second point made by the appellants is that after 27-12-1985 fresh show cause notices should have been issued by the Collector. We find no such requirement in the law. All that the amendment of 27-12-1985 required was that from that date onwards the notices invoking proviso to Section 11A (1) should be issued and adjudicated upon by the Collector. Prior to 27-12-1985, the notices could be issued by "a Central Excise Officer". The first two notices dated 8-10-1985 and 21-11-1985 issued by the Superintendent, who was a Central Excise Officer, were, therefore, valid. The amendment of 27-12-1985 did not require that notices already issued validly by an authority lower than the Collector should be replaced by fresh notices to be issued by the Collector. The third show cause notice dated 20-3-1986 issued by the Superintendent, though issued after 27-12-1985, did not cover the period beyond the normal time limit of six months and hence this notice was not affected by the amendment of 27-12-1985. The other requirement of the amendment of 27-12-1985 was that the cases demanding duty for over six months should be adjudicated upon by the Collector. This requirement was fulfilled in the present case and the Collector, before whom the proceedings were transferred, decided the matter after a due notice to the appellants and after granting them a fresh personal hearing. We find support for our view from Section 8 of the Central Excises and Salt (Amendment) Act, 1985, according to which, on transfer of the pending proceedings from the Assistant Collector to the Collector, no fresh show cause notice was necessary; only a fresh hearing was necessary if so demanded by any party to the proceeding.

The Gujarat High Court judgment in Gujarat State Fertilizers Company case lends no support to the appellants' point. In the case before the Gujarat High Court, the show cause notice was issued on 15-1-87, i.e., after 27-12-1985, and since the show cause notice invoked the extended time limit of 5 years but had been signed by an officer lower than Collector, the Hon'ble High Court set aside the show cause notice as being invalid. This judgment is no authority for the appellants' proposition that show cause notices already validly issued by a Central Excise Officer before 27-12-1985 had to be re-issued by the Collector after 27-12-1985.

11. The third point of the appellants is that the Collector was not empowered under the Act to have the proceedings transferred to himself from the Additional Collector. This point already stands answered by us in paragraph 9 above while dealing with the first objection of the appellants. An assessee charged with contravention of law cannot dictate that his case should be adjudicated by a particular officer only. So long as the appellants' case was adjudicated upon by an officer having jurisdiction and after a due notice and hearing, the requirements of law and principles of natural justice were fulfilled.

12. In the result, we dismiss all the preliminary legal objections put forth by the appellants.

13. The Registry should now list the appeal for hearing both sides on other points of the case.