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2010 (6) TMI 662 - HC - Central ExciseJurisdictional issue pertaining to the Committee – Commissioner of Central Excise, Dibrugarh, had by his order dated 23-4-2008 dropped all the charges brought against M/s. Kothari Products Ltdand consequentially allowed its products to be cleared from the factory - Members of the Committee on a consideration of the materials on record, adjudged the said decision of the Commissioner and directed him (Commissioner of Central Excise, Dibrugarh) to apply to the Tribunal for a correct determination of the points as enumerated in its order dated 24-7-2008 – Respondents preferred against the decision dated 24-7-2008 of the Committee, questioned its (Committee) jurisdiction and authority contending that the composition thereof was not in accordance with the mandatory requirements of Section 35(1B) of the Act and the relevant Rules framed thereunder – According to them, two members thereof namely Shri Rajendra Prasad who acted as Chief Commissioner of Central Excise, Shillong, and Shri Hrishikesh Sharan who did so as Chief Commissioner of Central Excise, Kolkata, had no locus standi to discharge their said roles as the necessary notification under Rule 3(2) of the Central Excise Rules, 2002 to that effect which is obligatory, had not been issued. Held that:- By the Notification No. 23/2005-C.E. (N.T.), dated 13-5-2005 issued by the Joint Secretary to the Government of India, Finance Department, the appointment of Chief Commissioners of Customs to act as the Chief Commissioners of Central Excise for the purpose of constitution of committees under Section 35B(1B) of the Act was notified. The constitution of such committees was similarly notified by the Notification No. 24/2005-C.E. (N.T.) of the even date. At Sl. No. 21 of the said notification the composition of the committee for the area of jurisdiction (Dibrugarh/Shillong) has been indicated as hereunder :1.Chief Commissioner of Central Excise, Shillong. 2.Chief Commissioner of Central Excise, Kolkata. Board is empowered to specify the jurisdiction of a Chief Commissioner of Central Excise, Commissioner of Central Excise or Commissioner of Central Excise (Appeals), it has to essentially do so by means of a notification. Rule 3(2) only enables the Board to confer the jurisdiction of the Officers mentioned therein if it so chooses but once it decides to do so it has to cause the same to be effected only by a notification and not otherwise. Date on which the Committee involved herein had rendered its decision i.e. 24-7-2008, there was no notification conferring jurisdiction on Shri Rajendra Prasad to function as the Chief Commissioner of Central Excise, Shillong. Moreover, there was no regular incumbent in the office of the Central Excise, Shillong Zone. The Office Order No. 146/2008 dated 23-6-2008 whereby the Chief Commissioner of Customs, Kolkata, had been assigned the additional charge of the Chief Commissioner of Central Excise, Shillong, for the limited purpose of reviewing the orders passed by the Commissioners of Dibrugarh and Shillong until further orders not only on the face of it was a make shift arrangement, but also not at all in conformity with the peremptory prescription of Rule 3(2) of the Rules. As by the said order the Chief Commissioner Customs was being endowed with the jurisdiction to act as the Chief Commissioner of Central Excise, the same could not have been effected without a notification ordained by Rule 3(2). This coupled with the admitted absence of regular incumbent in the office of the Chief Commissioner of Central Excise, Shillong,has rendered the proceedings before the Committee comprised of Shri Rajendra Prasad and Shri Hrishikesh Sharan a nulity. Alike the Tribunal this Court has not expressed any opinion on the merits of the case and this determination is limited to the jurisdictional issue pertaining to the Committee - On a totality of the consideration, no merit in the appeal, accordingly dismissed.
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