TMI Blog2010 (6) TMI 662X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... members of the Committee for review (hereafter referred to as the Committee) contemplated under Section 35B of the Central Excise Act, 1944 (for short hereafter referred to as the Act) had not been validly appointed and that therefore its determinations questioned in the appeals were honest in law. 2. We have heard Mr. B. Sharma, learned Sr. Standing Counsel, Central Excise and Customs, for the appellants and Mr. G.N. Sahewalla, Sr. Advocate assisted by Mr. D. Senapati, Advocate for the respondents. 3. Briefly stated the facts in bare essential necessary for the present adjudication are that the Commissioner of Central Excise, Dibrugarh, had by his order dated 23-4-2008 dropped all the charges brought against M/s. Kothari Products Ltd., in Case No. Ex. App. 403/2008 and consequentially allowed its products to be cleared from the factory along with the free gifts of tobacco (purchased from another unit on payment of duty and was not subject to any charge). 4. The Committee aforementioned in the proceedings undertaken by it, on a consideration of the materials on record, adjudged the said decision of the Commissioner of Central Excise, Dibrugarh, in not imposing penalty on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had been constituted by including the Chief Commissioner of Central Excise, Shillong and Chief Commissioner of Central Excise, Kolkata, there was no necessity of any further notification under Rule 3(2) of the Rules to authorise it to act as such. This is more so, as according to him, by Notification No. 23/2005-Central Excise (N.T.) of the even date the Chief Commissioners of Customs had been appointed to act as the Chief Commissioners of Central Excise for the purpose of the Committees under sub-section (1B) of Section 35B of the Act, to substantiate this contention, the learned Central Government Counsel has drawn our attention to the Office Order No. 186/2007 dated 26-7-2007 whereby Shri Rajendra Prasad and Hrishikesh Sharan had been promoted as Chief Commissioner of Customs, Kolkata and Chief Commissioner of Central Excise, Kolkata. As by an Office Order No. 146/2008 dated 23-6-2008, the Chief Commissioner of Customs, Kolkata, had been assigned the additional charge of Chief Commissioner of Central Excise, Shillong, according to Mr. Sharma, the Committee of these two persons was not only validly constituted but had the required jurisdiction and authority under the Act, and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35E of the Act, a notification under Rule 3(2) of the Rules for the purpose of specifying the jurisdiction of the members of the Committee is an indispensable statutory enjoinment which could not have been disregarded or avoided by the office order dated 23-6-2008. 11. We have carefully considered the materials on record and the rival contentions made. At the outset it is considered essential to set out herein below for ready reference the relevant legal provisions involved. CENTRAL EXCISE ACT, 1944 Section 2(b) :- Central Excise Officer means the Chief Commissioner of Central Excise, Commissioner of Central Excise, Commissioner of Central Excise (Appeals), Additional Commissioner of Central Excise, Joint Commissioner of Central Excise, Deputy Commissioner of Central Excise, Assistant Commissioner of Central Excise or any other officer of the Central Excise Department, or any person (including an officer of the State Government) invested by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963, with any of the powers of a Central Excise Officer under this Act. Section 35B(1B)(i) :- The Central Board of E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 35E. This involves inter alia the power of review of an order/decision of a Commissioner of Central Excise, which it may invoke on its own motion. The order dated 24-7-2008 by the Committee involved in the instant proceedings is in exercise of such power of review which the respondents have contended to be purported, unreal and lacking in jurisdiction. 15. Certain basic facts ought to be noticed. 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. 16. As referred to hereinabove, by Office Order No. 186/2007, dated 26-7-2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es to hold that the insistence for a notification as contemplated under Rule 3(2) can be viewed to be either repugnant to or in supersession of the provisions of the Act. The role of the Rules being to supplement and consolidate the parent enactment for effective implementation thereof we are not inclined to sustain the plea of optional compliance of Rules 3(2) as asserted on behalf of the appellants. 20. The Apex Court in Bachahan Devi, supra, while dilating on the scope and purport of the expression, may and shall observed that the word may in a statutory provision would not per se indicate that the provision is directory in nature and that in some cases the legislature may use the expression as a matter of pure courtesy and yet mandate a statutory force. Their Lordships reiterated the oft quoted proposition that when the word may involves a discretion coupled with an obligation or where it confers a positive benefit to a general class of subjects in a utility Act, or where the Court advances a remedy and suppresses the mischief, or where giving the words a directory significance would defeat the very object of the Act, the word may should be interpreted to convey a man ..... X X X X Extracts X X X X X X X X Extracts X X X X
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