ADJUDICATION ORDER BEYOND PECUNIARY JURISDICTION ab initio VOID

[Mr. M. GOVINDARAJAN]

The jurisdiction is the basic element by a judicial authority or a quasi judicial authority in deciding a case.  The jurisdiction is of territorial jurisdiction, pecuniary jurisdiction etc.,  The order passed by the judicial authority or a quasi judicial authority without jurisdiction is bad in law and void ab initio.  In indirect tax laws the Board prescribes pecuniary jurisdiction for all levels of quasi judicial authority.  If the authority contravenes this aspect the order passed by that authority will be void ab initio and liable to be set aside.  This has well been explained in the case law discussed below.

In ‘Secon Surveys (P) Limited V. Commissioner of Central Excise &ST, Kochi’ – 2016 (9) TMI 1138 - CESTAT BANGALORE  the appellant is engaged in the business of surveying apart from rendering ‘consulting service’ and ‘construction supervision for Highways’ etc.,   During the course of audit, the appellant furnished information, records, documents and copies of contracts/agreements, bills etc., as required by the authorities.  The Department issued a show cause notice on the basis of audit report that the activities of the appellant would fall within the ambit of ‘Consulting Engineer’ and directed the appellant to pay services tax on the amount realized from 07.07.1997 onwards.

The appellant replied to the show cause notice but the Adjudicating Authority confirmed the demand of service tax to the tune of ₹ 1.48 crores along with interest.  A sum of ₹ 1.07 crores already by the appellant was appropriated.   However the adjudicating authority waived the penalty invoking Section 80 of the Chapter V of the Finance Act, 1994.

The appellant filed appeal  before the Commissioner (Appeals).  The Commissioner (Appeals) upheld the order of the adjudicating authority.   Against this order both the Department and the appellant filed appeals before the Tribunal.

In the meantime the Commissioner proceeded to issue a review show cause notice dated 10.12.2004 in exercise of powers under section 84 of the Finance Act 1994 proposing to review the order-in-original dated 16.07.2004 passed by the Deputy Commissioner of Central Excise.  A review show cause notice was issued to the appellant and the appellant strongly contested the review show cause notice.  The Commissioner in his review order confirmed service tax to the tune of ₹ 1.35 crores along with interest.  He imposed penalty-

• Rs.200/- per day as provided in section 76 of the Act;
• Rs.1000/- as provided in section 77 of the Act;
• A penalty of ₹ 1.50 crores under section 78 of the Act for having suppressed the value of taxable service with an intent to evade payment of service tax.

Against this order the appellant filed appeal before the Tribunal.  The appellant submitted the following before the Tribunal-

• The impugned order of Commissioner is not sustainable in law as the same has been passed ignoring the statutory provisions and the Board’s Circular and also ignoring the decisions of the judicial fora on taxability of certain services involved in the present case;
• The Deputy Commissioner lacked jurisdiction to pass an order and therefore, the entire proceedings are void ab-initio;
• The service tax law does not have a statutory provision in the Finance Act for independent appointment of Central Excise Officers for the purpose of service tax law;
• The Deputy Commissioner who passed the order dated 16.07.2004 do not have the pecuniary jurisdiction to adjudicate a demand notice involving the amount more than ₹ 5 lakhs as per circular no. 752/68/2003-CX, dated 01.10.2003 which was in force during the relevant time;
• The impugned order is bad in law because all the services covered by the impugned order is bad in law because all the services covered by the impugned order became taxable services only from 16.06.2005 by virtue of Finance Act, 2005 which introduced new services in relation to survey and map making services;
• No tax can be imposed retrospectively so as to saddle a person with a liability which did not exist when an act took place;
• The Commissioner has ignored the legal principles of ‘Doctrine of Merger; and has proceeded to exercise powers in derogation of the principles of law;
• The order-in-original passed by the Deputy Commissioner merged in the order-in-appeal passed by the Commissioner (Appeals) and therefore seeking review of the order which merged in order-in-original much after the order-in-appeal is not legal and not sustainable in law;

The Revenue supported the Order-in-original passed by the Deputy Commissioner but contested the Order-in-Appeal passed by the Commissioner (Appeals) and further he reiterates the findings of the impugned order passed by the Commissioner.                      

The Tribunal considered the submissions of both the parties.  The Tribunal found that the Deputy Commissioner lacks jurisdiction to pass the order and all the proceedings before him is void ab initio.  The order passed by the Deputy Commissioner is bad in law as he did not have the pecuniary jurisdiction to pass adjudication order at the relevant time which is clear from the Board’s Circular dated 01.10.2003.   The Tribunal also found that by ‘doctrine of merger’ the order passed by the Deputy Commissioner no longer survive and therefore, to review an order which does not exist in law is not permitted by law, more so when review order passed much after order passed by the Commissioner (Appeals).  The Tribunal allowed the appeal by setting aside the impugned order.