JUDGMENT By the Court.—The main question involved in this appeal is, ‘Whether a show-cause notice and the orders passed on its basis can be quashed for a defect in the notice without there being any prejudice to the affected party’. THE FACTS 2. M/s Raghunath International Ltd (the Assesee) is engaged in manufacture of, Paan Masala (chapter sub-heading number 2106 and 2108.99); Paan Masala containing tobacco (chapter sub-heading 2404.49); Branded chewing tobacco (chapter sub-heading 2404.41); and Meetha Masala (chapter sub-heading 2108.99). 3. A search was conducted by Central Excise Department (the Department) under the Central Excise Act, 1944 (the Act) in the factory of the Assessee on 29.5.2003. In this search some documents as well as goods were seized and the statements of its employees were recorded. 4. Subsequently, a show-cause notice dated 20.11.2003 was issued by the Deputy Commissioner, Central Excise to the Assessee as well as to two of its authorised signatories to show-cause as to why goods mentioned therein be not confiscated and the penalties be not imposed. 5. The Assessee filed its reply on 21.5.2004. The Deputy Commissioner, after considering the reply of the Assessee, confirmed the notice on 29.4.2004. He confiscated the goods; provided for a redemption fine; and imposed penalties on the Assessee as well as on its authorised signatories. 6. The Assessee filed an appeal; the authorised signatories also filed separate appeals. They were dismissed on 19.12.2005. They filed second appeals before the Custom Excise and Service Tax Appellate Tribunal (the Tribunal). They were also dismissed on 16.1.2009. Hence the present appeal by the Assessee only. POINTS FOR DETERMINATION 7. We have heard counsel for the parties. This appeal was admitted on six substantial questions of law. However, in this appeal the following points arise for determination in the case: (i) Whether the Joint Commissioner could exercise the power under Section 33 of the Act; (ii) Whether the Central Board of Excise and Customs (the Board) can delegate the power under Section 33 of the Act by a circular; (iii) Whether the impugned orders are liable to be set aside on the ground that neither in the notice, nor in the order sub-rules of the rule 25 of the Excise Rules, 1944 (the Rules) have been mentioned. 1st POINT: JOINT COMMISSIONER COULD EXERCISE POWERS 8. 1st POINT: JOINT COMMISSIONER COULD EXERCISE POWERS 8. Section 33 of the Act is titled ‘Power of adjudication’ and provides the following limits for the officers: Clause (a) of Section 33 {Section 33(a)} provides unlimited powers to the Commissioner of Central Excise; Clause (b) of Section 33 {Section 33(b)} provides limits for the Assistant Commissioner and Deputy Commissioner; The Joint Commissioner is higher in rank than the Assistant Commissioner and Deputy Commissioner but lower than the Commissioner of Central Excise in rank. However, he is not mentioned in Section 33 of the Act. 9. The proviso to Section 33 provides that the Board may confer powers indicated in the clause (a) or (b) of Section 33 on any officer. The Joint Commissioner is also a central excise officer within the meaning of Section 2(b) of the Act. He is also an officer to whom powers can be conferred under proviso to Section 33 of the Act. 10. In view of above, the Joint Commissioner could exercise powers under Section 33 of the Act if it was conferred upon him. 2nd POINT: POWER CAN BE DELEGATED BY CIRCULAR 11. The notice was issued by the Joint Commissioner. The confiscation order as well as the penalties were imposed by him. The question that he had no jurisdiction to do so, was not raised before him. 12. The grounds of appeal are not on the record. It cannot ascertained whether the aforesaid question was raised before the Commissioner (Appeals) or not: however, his order does not deal with this question. 13. This point has been decided by the Tribunal in favour of the Department on the basis of the Circular number 752/68/03-CX dated 1.1.2003 (the Circular), where the Joint Commissioner has been conferred powers under Section 33 of the Act. It is not disputed that in case the Circular is valid then the Joint Commissioner could legally pass the order. 14. The counsel for the Assessee has brought to our notice the notifications dated 6.11.1948 and 28.11.1959 and submitted that: Earlier, the power under Section 33 of the Act was conferred by the notifications as it could only be conferred by a notification; The power could not be conferred by a circular; The Circular is illegal. 15. The Act provides, what can be done by framing rules (Section 37); or by issuing notifications (Section 37A); or by giving instructions or directions (Section 38B). 15. The Act provides, what can be done by framing rules (Section 37); or by issuing notifications (Section 37A); or by giving instructions or directions (Section 38B). However, Section 33 has no such limitation. 16. Section 33 does not provide any restriction as to how the power is to be conferred. No other provision has been brought to our notice providing restriction for conferring powers under Section 33 of the Act. In absence of the same, the conferment of power by a circular cannot be faulted merely for the reason that on the earlier occasions it was done by notifications. 17. In our opinion, The Board can confer powers under Section 33 by means of a circular; The conferment of powers under Section 33 of the Act by the Circular is legal. 3rd POINT : NOTICE & ORDER VALID 18. The counsel for the Assessee has cited Amrit Foods v. CCE, 2005 (190) ELT 433 (SC) (the Amrit Case) and submitted that: Rule 25 has four sub-rules however, neither in the notice, nor in any of the orders it has been indicated as to which sub-rule was violated; The notice as well as orders are liable to be set aside on this ground. 19. Rule 173-Q of the Rules (as it then stood) had six sub-rules. In the Amrit case, it appears that the notice did not contain the reference to the sub-rule of rule 173-Q that was said to be contravened. The Tribunal set aside the order of the Commissioner. The appeal against that order was dismissed by the Supreme Court. 20. The order of the Supreme Court is not a detailed order. The order of the Tribunal in the Amrit case is not before us. From the order of the Supreme Court in the Amrit case, it is not clear, Whether this objection against the notice was taken at the earliest or not; Whether by not mentioning the sub-rule any prejudice was caused or not. Unless, these points are clear, no reliance can be placed on the Amrit case. 21. In the present case, the show-cause notice is on the record. The sub-rule of rule 25 of the Rules that is said to be contravened is not mentioned though rule 25 is mentioned. However, it contains the necessary ingredients of sub-rule 25(a) (b) and (d). Unless, these points are clear, no reliance can be placed on the Amrit case. 21. In the present case, the show-cause notice is on the record. The sub-rule of rule 25 of the Rules that is said to be contravened is not mentioned though rule 25 is mentioned. However, it contains the necessary ingredients of sub-rule 25(a) (b) and (d). It also indicates the evidence on the basis of which those ingredients are proved and the penalty that might be imposed. 22. In this case, no objection was taken against the notice. The objection was also not taken before the Commissioner (Appeals). It was taken for the first time before the Tribunal. Had it been taken at the first instance then, the mistake could have been corrected. In these circumstances, the objection could not be entertained by the Tribunal. 23. Apart from above, the Assessee had full knowledge of the ingredients as well as the evidence. No prejudice has been caused. Even before us, nothing has been brought to our notice to show that any prejudice was caused. The notice and the orders cannot be set aside merely for the reason that the contravened sub rule was not mentioned. 24. In our opinion, as no prejudice was caused—the impugned orders cannot be set aside. CONCLUSIONS 25. Our conclusions are as follows: (a) The joint commissioner can exercise power under Section 33 of the Act provided it is conferred upon him; (b) The Board can confer power under Section 33 by a circular as well. There is no illegality in conferring the power by the Circular dated 1.1.2003; (c) A notice or an order cannot be invalidated for a defect unless prejudice was caused; (d) In this case, no prejudice was caused. The notice and the orders are not invalid for the reasons that the sub-rules of Rule 25 of the Rules were not mentioned. In view of our conclusions, there is no merit in the appeal. It is dismissed. —————