TMI Blog2008 (9) TMI 625X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise, Commissioner of Central Excise etc. and any other officer invested by the Board with any of the powers of a Central Excise Officer under the Act. xx xx xx xx xx 10. We note that Rule 3 of the Central Excise Rules, 2002 made under the Act empowers the Board to appoint Central Excise Officers by notification and also to specify the jurisdiction of a Chief Commissioner and a Commissioner by notification. Shri Das, learned Senior Advocate points out that by virtue of definition in Rule 2(f), such notification has also to be in the Official Gazette. Dr. Samir Chakraborty, learned Advocate states, unless an official is appointed in the manner statutorily provided and invested with appropriate jurisdiction, he cannot exercise any of the statutory powers as has been held by the Hon ble Supreme Court in several cases . Appointment of public functionaries in the manner prescribed by law is a sine qua non to make them known to the public. Failure to do so, makes such functionaries powerless and Revenue remediless. 2. In this back ground, these three appeals filed by the Department called for scrutiny of locus standi of the Reviewing Authorities to ascertain maintainabil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Six only) and has imposed a penalty of Rs. 1,00,000/- (Rupees One Lakh only). The Appeal filed by the Department seeks enhancement of penalty equal to the duty amount of Rs. 76,95,756/- (Rupees Seventy Six Lakhs Ninety Five Thousand Seven Hundred and Fifty Six only). 4. Prima facie we find the following noticeable features in Revenue s appeals :- (i) Reviewing Officials could not legally discharge their duty for lack of validity of their appointment by appropriate Notification under law. (ii) Review orders fail to bear date by the Reviewing Authorities and fail to demonstrate when they met. (iii) Review orders are dated on two different dates appearing under signature of the authorities or one dates and the other fails. (iv) One Authority dates much later than the other authority dating the review order. (v) Records fail to demonstrate whether Reviewing Authorities met in person on the date of review to participate in the discussion and apply their judicial mind so as to discharge quasi-judicial function of review under the law. (vi) There is no express provision sanctioning review by circulation but that is not ruled out from the records. 5. At t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mined in this case. 9. In respect of Appeal No. 543/07, neither Shri Hrishikesh Sharan nor Shri Rajendra Prasad had signed the Review Order in the capacity of Chief Commissioner of Central Excise, Shillong, who is notified as a Member of the Review Committee. As such, validity of the said Review Order also required to be examined additionally for this reason. 10. In the Appeal Case No. 348/08 the Review Order was passed under the Customs Act, 1962 whereas in respect of the other two Appeals i.e. EA-377/08 and 543/07 the Review Orders have been passed under the Central Excise Act, 1944. Section 129D(1) requires Committee of Chief Commissioners of Customs by its own motion to call for and examine the records of any proceeding in which a Commissioner of Customs as an adjudicating Authority has passed any decision or order under the Act for the purpose of satisfying itself as to the legality or propriety of any such decision or Order. According to that Section the said Committee may, by order, direct the Commissioner to apply to the Tribunal for determination of such points arising out of the decision or order as may be specified by the said Committee in its order. A similar provis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te. 16. It is noticed that Office Order No. 186/07 dated 26-7-2007, issued by Deputy Secretary to the Govt. of India conveyed the approval of the President for promotion of 12 Officers to the grade of Chief Commissioner of Customs Central Excise including Shri Hrishikesh Sharan at Sl. No. 7 w.e.f. the date of assumption of charge to the post and until further orders. In para 2 of the Order. Transfer and posting of 19 Chief Commissioners of Customs and Central Excise was also ordered by the same Office Order which includes Shri Hrishikesh Sharan at Sl. No. 14, who was posted to Central Excise, Kolkata on promotion. Apart from this Office Order, no Notification was issued by the Board in the Official Gazette as required under Rule 3 of the Central Excise Rules, 2002 posting Shri Hrishikesh Sharan or anyone else as Chief Commissioner of Central Excise, Kolkata since no such notification was brought to notice in the course of hearing. 17. Significantly, it was noticed that Notification No. 36/08, dated 12-8-2008 was issued exhibiting that the President was pleased to promote Shri G.S. Narang to the grade of Chief Commissioner, Customs and Central Excise notionally w.e.f. 25-1-200 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tutory functions required to be performed under the Central Excise Act by a Central Excise Officer as defined in section 2(b) of the said Act. Defect, if any, in the matter of appointment is a curable technical/procedural defect and does not affect the rights and liabilities of the assessees or of the Central Excise Officers in any way. It makes no difference to the assessees whether the appointment is made by an office order or by notification. Public interest should not suffer because of any such technical issue. It would be a radical view to construe Rule 3 otherwise than as suggested by the Revenue. This Hon ble Tribunal should consider the appeal on merits. 20. With the above submissions, learned JCDR requested for a day s time without any cogent reason when he failed to bring any public notification. That did not call for entertaining his prayer. Suddenly on the day following the hearing, the learned JCDR filed a letter addressed to the Assistant Registrar of the Tribunal, reiterating the above submissions and required to place the same before the Bench. In that letter it was also alleged that the issue of locus standi was raised by the Bench before the Bar. It may be menti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rson whom it thinks fit should be appointed as a Central Excise Officer but after making the choice, the appointment has to be made in the prescribed manner alone, namely, by notification in the Official Gazette. It is settled law that if a statute provides for a thing to be done in a particular manner then it has to be done in that manner and in no other manner. This principle is to be found in the decision of the Privy Council in Nazir Ahmed v. King Emperor, AIR 1936 PC 253(II) and has since been reiterated in several decisions of the Hon ble Supreme Court and the Hon ble High Courts. Reference is invited to the judgment of the Hon ble Supreme Court in Chandra Kishore Jha v. Mahavir Prasad, (1999) 8 SCC 266-para 17 (pages 272-3) and Competent Authority v. Baranagore Jute Factory, (2005) 13 SCC 477-para 5 (page 483 at 484). The said principle was applied by the Division Bench of the Hon ble Calcutta High Court in a recent decision in Shaw Wallace Company Limited v. Union of India, (2004) 267 ITR 248 (Cal.). Before a person can exercise any statutory function as a Central Excise Officer, there must be in existence a notification in the Official Gazette appointing such person ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... body under the statute, the statutory function entrusted to such officer or body cannot be performed. The question of appointment cannot be dismissed as a technical or procedural matter. The rights and liabilities of the assessees or the Revenue can be dealt with only by a competent person or body as prescribed by the statute and by no other person. Public interest demands that it should be so and not otherwise. It would certainly matter both to the assessees and the Revenue that statutory functions are performed by a validly appointed officer or body. If the Government has prescribed that the appointment of a Central Excise Officer has to be by notification in the Official Gazette, such appointment can take effect only upon notification in the Official Gazette and any action taken prior to such notification would be without jurisdiction, nullity and of no effect in the eye of law. (D) RULE 3 DOES NOT NULLIFY THE PARENT ACT The instant case is not one of subordinate legislation nullifying the present statute. Rule 3 of the Central Excise Rules has been framed by the Central Government in exercise of its statutory power for giving effect to the statutory provisions. It is not th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the assessee had failed to comply with the conditions contained in Notification Bearing No. 52/2003-Cus., dated March 31, 2003 with regard to installation of the imported capital goods within the stipulated period and achievement of positive net foreign exchange earning but had failed to comply with the same. (B) The assessee answered the said allegation by saying, inter alia, that it was governed by notification bearing No. 13/81-Cus., dated February 9, 1981 during the currency of which the capital goods were imported and the letter of permission dated July 31, 1992 issued by the Government, which did not contain the conditions which found place in the later notification sought to be relied upon by the revenue. It was submitted that the assessee had in fact installed the imported plant and machinery; commenced commercial production; made substantial exports and was making every effort to fulfil the export obligation, the period for which was yet to expire. (C) The Commissioner accepted the assessee s contention as regards non-applicability of the condition of the later notification stipulating the time-frame for installation of the imported capital goods. However, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n merit in due course for which learned JCDR has no objection in the course of hearing nor in the letter dated 5-9-2008. 26. Learned Counsel Shri Anirudha Bagchi, appearing in Appeal Case No. 377/08 and Shri N. K. Choudhury, learned Counsel appearing in Appeal Case No. 543/07 adopting arguments of the learned senior Counsel Shri Khaitan in the matter of locus standi being common issue in their appeal prayed for leave of the Tribunal and submitted that they reserve their right to argue the matter further if Revenue succeeds on the preliminary issue of locus standi. Such leave prayed for was allowed. 27. Both sides were extensively heard on the basic issue of locus standi and their written submissions considered. 28. Objects of the Central Excise Act, 1944 and the Customs Act, 1962 are to be fulfilled by appointing officers in the manner laid down by these two statutes. Central Excise Officers who are appointed under the law are defined under Section 2(b) of the Central Excise Act, 1944. They are invested with power by the Board constituted under the Central Board of Revenue Act, 1963. Such Officers exercise powers as conferred by law and discharge duties as required under vari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a State. A Gazette is generally understood as an Official Government Journal containing public Notices and other prescribed matters. Legal Glossary (1983 Edition) issued by the Legislative Deptt. of Ministry of Law, Justice and Company Affairs, Govt., of India defines Gazette as Official Newspaper containing list of Govt., appointments, legal notices, dispatches etc. . The date on which an Official Gazette is made available to the public that brings out the contents thereof to the notice of public. The General Clauses Act being an important piece of legislation makes clear that appointments of the Public Authorities under different statutes, vesting them with power to act on behalf of the Central Government is communicated to the public because public are to be dealt with by that invested power by the notified authority only who has been recognised by law in terms of Gazette Notification. Vesting of power on an authority comes to knowledge of court as well as public through the Official Journal called Gazette. Appointment of Authorities through Gazette being a necessity of law compliance thereof is mandatory and failure to do so is incurable. 31. Mode of communication in the mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appropriate notification is curable is inconceivable. 33. It has been noticed in preceding paragraphs that the Reviewing Signatories who have signed the authorizations in all the above three cases are without being validly appointed by appropriate notification to act as Chief Commissioners, were not invested with power of Review u/s 35B(1B) of Central Excise Act, 1944 and u/s 129A(1B) of Customs Act, 1962. Revenue failing to bring copies of Notifications in the Official Gazette for perusal by the Bench and satisfy that both the signatories were authorized Authorities and notified according to the procedure known to law to perform the functions of Reviewing Authority, they were made powerless by the Board which ultimately made the Revenue remediless. Accordingly we are compelled to declare the act of review by the signatories in all the 3 (three) appeals ab initio void and non est. Revenue s Appeals are accordingly liable to be dismissed at the threshold. 34. In addition to the above, it is also noticed that the following signatories subscribing their signatures to the authorization in the above three appeals also left the following infirmities.- Appeals Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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