TMI Blog2008 (9) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... vor of appellant. - E/296/2008 - A/863/KOL/2008 - Dated:- 4-9-2008 - Dr. Chittaranjan Satapathy, Shri D.N. Panda, JJ. REPRESENTED BY : Dr. Samir Chakraborty, Advocate, for the Appellant. Shri J.A. Khan, SDR, for the Respondent. [Order per : Chittaranjan Satapathy, Member (T)]. Heard both sides. 2. In this case, the impugned Order-in-Original has been passed by Shri C.M. Mehra as Commissioner of Central Excise, Kolkata-I confirming a duty demand of Rs. 56,43,338.00 (Rupees fifty-six lakhs forty-three thousand three hundred and thirty-eight and imposing a penalty of Rs. 60.00 lakhs (Rupees sixty lakhs) on the Appellants. The matter was initially heard on 2nd September, 2008 when Dr. Samir Chakraborty, learned Advocate appearing on behalf of the Appellants argued on a preliminary point that Shri C.M. Mehra had not been appointed as Commissioner of Central Excise, Kolkata-I as required under the law and hence, the impugned Order passed by him was without jurisdiction and therefore, the same was required to be set aside after waiving the requirement of predeposit. At the request of Shri J.A. Khan, learned S.D.R., the hearing was adjourned to today to enable him to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty is concerned, the law referred to in the Constitution of India is the Central Excise Act, 1944 and the Rules made thereunder, which have the force of law. As held by the Hon ble Supreme Court in the case of Competent Authority v. Baranagar Factory - (2005) 13 SCC 477, where the law requires an act to be done in a particular manner, the same has to be done in that manner alone. Since the Central Excise Act and Rules require a Commissioner of Central Excise to be appointed by the Board by a notification published in the Official Gazette, the same was required to be done in appointing Shri C.M. Mehra in respect of Kolkata-I Commissionerate having jurisdiction over the appellant assessee. Since Shri Mehra has not been so appointed, he had no jurisdiction whatsoever, to pass the impugned Order demanding the duty and imposing the penalty. The Order passed by him requires to be set aside being an illegal Order passed without having jurisdiction. 4. Heard Shri J.A. Khan, learned S.D.R. for the Department. Shri Khan produces a copy of the Charge Report dated 2-11-07 signed by Shri A.K. Pawar, Commissioner, Central Excise, Kolkata-I as Relieved Officer and Shri C.M. Mehra, Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). Secondly, he states that the question of a Revenue Official lacking jurisdiction to pass an Order demanding Central Excise duty and imposing penalty is a question of law and as held by the Hon ble Supreme Court, such a question of law relating to jurisdiction can be raised at any stage of the proceeding including the appellate stage. In this connection, he cites the decision in the case of Moly Another v. State of Kerala - (2004) 4 SCC 584 in which it has been held that plea relating to lack of jurisdiction is a pure question of law which can be raised in the appellate court even if not raised before the courts below. He also cites the decision of the Tribunal in the case of Nandi Metal Rolling Mills v. CCE - 1992 (60) E.L.T. 322 (Tribunal) in which the decision of the Hon ble Supreme Court in the case of Kiran Singh Others v. Chaman Paswan - 1954 SCA P. 725 was cited, wherein the Hon ble Supreme Court has held that it is a fundamental principle, well-established that a decree passed by the Court without jurisdiction is a nullity and its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon even at the stage of execution and even in coll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Coco-cola Beverages (supra). We are of the view that no public official can exercise the statutory powers without being vested with jurisdiction under the relevant tax statute in the manner prescribed under the law. It is inconceivable that an official can perform duties under a tax statute without having lawful authority or jurisdiction. As is argued by Dr. Chakraborty on behalf of the Appellants, the constitutional mandate makes it very clear that no tax can be levied and collected except by authority of law. The law, in this case, Section 2(b) of the Central Excise Act, 1944 read with Rule 3 of the Central Excise Rules, 2002 requires that the Central Board of Excise and Customs should appoint Commissioners of Central Excise by notification in the Official Gazette and specify their jurisdiction. Admittedly, Shri C.M. Mehra who has passed the impugned Order has not been so appointed as Commissioner of Central Excise, Kolkata-I Commissionerate by the Central Board of Excise and Customs by a Notification published in the Official Gazette. The Central Excise law lays down the scheme of appointment of officials and the manner of levy and collection of Central Excise duty as well as th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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