TMI Blog2021 (11) TMI 900X X X X Extracts X X X X X X X X Extracts X X X X ..... al zones in Bangalore. This notification comes into effect from 15-10-2014. After the 2nd respondent issuing summons and recording statements, the matter is referred to the Principal Additional Director General, Central Excise Intelligence of Service Tax. This is in terms of Notification issued on 15.10.2014 pursuant to which, the Principal Additional General, Central Excise Intelligence, Principal Additional Director General, Service Tax or Principal Additional Director General, Audit shall exercise the power of the Principal Commissioner. The five officers who are indicated are empowered to exercise the powers of the Principal Commissioner. Likewise, Senior Intelligence Officer, Central Excise Intelligence, Superintendent, Service Tax or Superintendent Audit could exercise the power of the Superintendent. The justification of the revenue is in terms of the said notification, the summons that were issued by the Intelligence Officer is now transferred to Principal Commissioner who has also issued a detailed show cause notice which is impugned in the writ petition to answer the notice - a Central Excise Officer would mean the Principal Chief Commissioner of Central Excise, Princi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y other writ or direction to quash the notification No.22/2014-15 dated 16-09-2014 enclosed as Annexure-B issued by the respondent No.4 to the extent of appointment of officers of DGCEI as Central Excise Officers having all India jurisdiction and declare it as illegal and ultra vires being violative of Articles 14, 19, 265, 300A of he Constitution; (d) Writ or direction in the nature of a writ of certiorari or any other writ or direction to quash the show cause notice No.79/2016-17 dated 13-12-2016 enclosed to Annexure-N issued by the respondent No.5 as being arbitrary and oppressive being violative of Articles 14, 19, 265 and 300A of the Constitution; (e) Writ or direction in the nature of a writ of certiorari or any other writ or direction to quash the show cause notice No.79/2016-17 dated 13-12-2016 enclosed as Annexure-N issued by the respondent No.5 as being issued mechanically, with premeditated mind and lacking in judicial discipline as being contrary to settled decisions; And (f) Grant such other reliefs as this Hon ble High Court may think fit including the cost of this writ petition. 2. Brief facts leading to the filing of the writ petition, as borne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rate General of Service Tax. This notification come into effect from 15.10.2014, which was in supersession of the earlier notifications dated 28.01.1998 and 11.03.2004, which had till then held the field. 5. In 28.07.2016, investigations were initiated by a Senior Intelligence Officer, Director General of Central Excise Investigations, Belagavi, against the petitioner for the following payment of service tax on the reimbursement of expenses such as salaries to staff and associates and other additional expenditure. The DGCEI, Belagavi Unit, issued summons to the petitioner seeking the following information: (1) Form 26AS for the Financial year 2011-12 to 2015-16. (2) Balance Sheets (P L) IT returns and audit report u/s 44AB for 2011-12 to 2015-16. (3) Duly attested copies of random bills raised for each financial year. (4) Work order copies/agreements. (5) To tender evidence. After seeking the aforesaid information, the petitioner was directed to appear before the Senior Intelligence Officer of the DGCEI on 28.07.2016. The 2nd respondent/officer recorded the statement of the petitioner and requested submission of all the documents while referring to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat it is contrary to the Act. 9. On the other hand, the learned counsel Sri.K.V.Aravind, appearing for the revenue would vehemently argue and oppose the submissions contending that what has been done by issuance of summons is only to record the statement of the petitioner and transfer the case to the jurisdictional Commissionerate. The proceeding is not conducted by the 2nd respondent/Senior Intelligence Officer but only by the competent authority in the Commissionerate of Service Tax. The very document that the petitioner would rely as a testimony for the fact that the proceedings are now instituted only by the competent authority and not by the 2nd respondent as is contended. The petitioner has now called in question notices and a writ calling in question a notice would not be maintainable as he has to reply to the same unless it is without jurisdiction. The learned counsel submits that the proceedings instituted are within the jurisdiction and who is conducting is also jurisdictional Commissionerate even according to the petitioner. 10. I have given my anxious consideration to the respective submissions and the only issue that falls for my consideration is as to, whether ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Central Excise Act, 1944 (1 of 1944), read with clause (55) of Section 65B of the Finance Act, 1994 (32 of 1994), rule 3 of the Central Excise Rules, 2002 and Rule 3 of the Service Tax Rules, 1994 and in supersession of the Notification No.46/98- SERVICE TAX, dated the 28th January 1998, published vide number G.S.R. 59(E), dated the 28th January, 1998 and No.7/2004-C.E., dated the 11th March 2004, published vide number G.S.R. 187(E), dated the 11th March, 2004, the Central Board of Excise and Customs hereby appoint the officers in the Directorate General of Audit, Directorate General of Central Excise Intelligence and Directorate General of Service Tax specified in column (2) of the Table below as Central Excise Officers and invests them with all the powers under Chapter V of the Finance Act, 1994 (32 of 1994) and the rules made thereunder, throughout the territory of India, as are exercisable by the Central Excise Officers of the corresponding rank as specified in column (3) of the said Table, namely:- TABLE Sl.No. Officers Officers whose powers are to exercised 1. Pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) of Section 94 of the Finance Act. The Rules framed in terms of the Act depict appointment of officer. Rule 3 reads as follows: 3. Appointment of officers. The Central Board of Excise and Customs may appoint such Central Excise Officers as it thinks fit for exercising the powers under Chapter V of the Act within such local limits as it may assign to them as also specify the taxable service in relation to which any such Central Excise Officers shall exercise his powers. In terms of the afore-extracted Rule 3, the Central Board of Excise and Customs is empowered to appoint such Central Excise Officers as it deems fit to act within the local limits as it may assign to them as also specify taxable service in relation to any such officer exercising such power. In terms of Rule 3, the jurisdiction of the Principal Commissioner of Central Excise and Chief Commissioner of Service Tax are depicted by issuance of a notification. 13. The jurisdiction of the Chief Commissioner of Central Excise, Bangalore has come to the Principal Commissioner of Tax-1, Bangalore and Chief Commissioner of Tax-II, Bangalore. Likewise, territorial jurisdiction of Principal Commissioners of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Central Excise Assistant Commissioner of Central Excise 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 (54 of 1963) with any of the powers of a Central Excise Officer under this Act. In terms of the afore-extracted definition in the Act, a Central Excise Officer would mean the Principal Chief Commissioner of Central Excise, Principal Commissioner of Central Excise, Additional Commissioner of Central Excise and other officers as defined under the Act. If the definition of Central Excise Officer under the Act is read in tandem with the impugned notification, it becomes unmistakably clear that a Principal Commissioner of Central Excise is also a Central Excise Officer and the power of the Principal Commissioner can be exercised by the aforesaid 5 officers one of whom is the Principal Additional Director General, Central Excise Intelligence. 17. Therefore, the contention that depiction of authorities under the impugned notification is contrary to the Act is unacceptable as a conjoint reading of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and participate in the proceedings. 21. The judgments that the petitioner placed reliance upon are all cases where the action of issuance of show cause notice was on the fact of it being without jurisdiction. The latest of the judgment that was relied on by the learned counsel appearing for the petitioner to contend that the entire issue stands covered by the said judgment is also unacceptable. In the case of CANNON INDIA PRIVATE LIMITED v. COMMISSIONER OF CUSTOMS 2021 SCC Online SC 200, the Apex Court while considering who is the proper officer delineates as follows: 9. The question that arises is whether the Directorate of Revenue Intelligence had authority in law to issue a show cause notice under Section 28(4) of the Act for recovery of duties allegedly not levied or paid when the goods have been cleared for import by a Deputy Commissioner of Customs who decided that the goods are exempted. It is necessary that the answer must flow from the power conferred by the statute i.e. under Section 28(4) of the Act. This Section empowers the recovery of duty not paid, part paid or erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be useful to refer to the decision of this Court in the case of Commissioner of Customs v. Sayed Ali wherein the proper officer in respect of the jurisdictional area was considered. The consideration made is as hereunder:- 16. It was submitted that in the instant case, the import manifest and the bill of entry were filed before the Additional Collector of Customs (Imports), Mumbai; the bill of entry was duly assessed, and the benefit of the exemption was extended, subject to execution of a bond by the importer which was duly executed undertaking the obligation of export. The learned counsel argued that the function of the preventive staff is confined to goods which are not manifested as in respect of manifested goods, where the bills of entry are to be filed, the entire function of assessment, clearance, etc. is carried out by the appraising officers functioning under the Commissioner of Customs (Imports). 17. Before adverting to the rival submissions, it would be expedient to survey the relevant provisions of the Act. Section 28 of the Act, which is relevant for our purpose, provides for issue of notice for payment of duty that has not been paid, or has been short-lev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... customs who have been assigned specific functions would be proper officers in terms of Section 2(34) the Act. Specific entrustment of function by either the Board or the Commissioner of Customs is therefore, the governing test to determine whether an officer of customs is the proper officer . 20. From a conjoint reading of Sections 2(34) and 28 of the Act, it is manifest that only such a Customs Officer who has been assigned the specific functions of assessment and reassessment of duty in the jurisdictional area where the import concerned has been affected, by either the Board or the Commissioner of Customs, in terms of Section 2(34) of the Act is competent to issue notice under Section 28 of the Act. Any other reading of Section 28 would render the provisions of Section 2(34) of the Act otiose inasmuch as the test contemplated under Section 2(34) of the Act is that of specific conferment of such functions. 24. We, therefore, hold that the entire proceeding in the present case initiated by the Additional Director General of the DRI by issuing show cause notices in all the matters before us are invalid without any authority of law and liable to be set-aside and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
