TMI Blog2022 (7) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... Officers - Reason why Officers form the Central Excise Department were given the task for implementing the provision relating to levy of service tax by the Parliament is because the Board did contemplate creation of a separate cadre of officers employees for implementing the provision of Chapter V of the Finance Act, 1994. The definition of Central Excise Officer in Section 2(b) of Central Excise Act, 1944 is expansive. It is clear that apart from officers specified therein from the Central Excise Department, any other officer including an officer of the State Government) invested with any of the powers of a Central Excise Officer this Act by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 - by default all the officer of Central Excise Department are Central Excise Officers . Apart from them such other officers including an officers of the State Government invested by the Board constituted under the Central Boards of Revenue Act, 1963 with any of the power of a Central Excise Officer under the Act are Central Excise Officers . By virtue of Notification No.38/2001-C.E. (N.T), dated 26.06.2001 issued under Section 2(b) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 of the Service Tax Rules, 1994, the Board can appoint any other officer to exercise power within the local limits . However, that would not mean that the officers of Directorate of Central Excise Intelligence (DGCEI) [presently The Directorate of GST Intelligence] who are already Central Excise Officers under Notification No.38/2001-C.E. (N.T), dated 26.06.2001 for whole of India cannot exercise power pan India. Notification No.22/2014-ST dated 6.09.2014 is to be read in conjunction with Notification No.38/2001- C.E. (N.T), dated 26.06.2001. It cannot be said that the officers who has been vested with the powers under the impugned Notification No.22/2014-S.T., dated 06.09.2014, are not the Central Excise Officers . The challenge to the proceedings which have been impugned in W.P.No.24960 of 2021 and W.P.No.17941 of 2020 (Category-2) on the ground of limitation etc, involves disputed questions of fact. Therefore these issues are best left to be adjudicated by the namely Central Excise Officer such a Central Excise Officer could be a different person from the person issued show cause notice as a Central Excise Officer under Section 73 of the Finance Act, 1994. As lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Discussion. 130 - 201 VII Conclusion 202 -208 PART I INTRODUCTION There are three categories of Writ Petitions. They are categorized as follows:- Category No.1: Writ Petitions have been filed against the impugned Notification No.22/2014- ST, dated 16.09.2014 issued by the Central Board of Excise and Customs under power conferred by clause (b) of section 2 of the 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. Category No.2 :Writ Petitions have been filed against the impugned Show Cause Notices (SCNs) issued by the Additional Director General, Directorate of GST Intelligence of the respective Zonal Units and Principal Additional Director General, Directorate of GST Intelligence, Chennai Zonal Unit and Additional Director General, Directorate of GST Intelligence (Hqrs.), New Delhi. Category No.3 :Writ Petitions have been filed against the impugned Orders-in-Original passed by the Adjudicating Authority which proceeded Show C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e records relating to the Show Cause - cum - Demand Notice F.No.IV (6) LdZU/ ST/06/ 2020-21/ 1967 dated 23 October 2020 and DIN Number as 202010DNN500006L17EF2 (Impugned Notice / SCN) received on 03 November 2020 issued by the second respondent Additional Director General, Directorate General of Goods and Service Tax Intelligence, Ludhiana Zonal Unit and quash the same 9 17941/2020 Chennai Super Kings For issuance of a Writ of Certiorari, to call for the records of the first respondent Additional Director General, Directorate General of GST Intelligence, Ludhiana Zonal Unit relating to show cause notice bearing number F.No.IV(6)LdZU/ST/05/2020- 21/1961, dated 23.10.2020 and quash the same. 10 12853/2020 M/s.Redington (India) Limited For issuance of Writ of Certiorari, to call for the records of the respondent Principal Additional Director General, Director General of Goods and Services Tax Intelligence, Chennai Zonal Unit relating to issuance of the Show Cause Notice dated 30.07.2020 bearing reference F.No.INV / DGGI / CZU / ST / 98 / 2019 / 5769 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M/s.NLC India Limited For issuance of a Writ of Certiorari to call for the records relating to the Show Cause Notice No.32/2021, dated 11.10.2021 issued by the first respondent Principal Additional Director General, Directorate of GST Intelligence, Chennai Zone Unit and quash the same. 6. Particulars of the Writ Petitions in Category No.3 are as detailed below:- Sl. No W.P.No Name of Petitioner / Company Prayers 18 24680/2021 M/s.G.K.Shipping Services Pvt. Ltd For issuance of a Writ of Certiorari, to call for the records pertaining to the impugned Order in - Original No.11 / JC / ST / 2021 dated 25.08.2021 passed by the thiird respondent Joint Commissioner in F.No.R-114 / 2010 -CBS, pursuant to the Demand cum Show Cause Notice dated 30.12.2020 issued by the second respondent Additional Director. 19 17938/2021 Qualities Medical Group Private Limited For issuance of a Writ of Certiorari, to call for the records relating to the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Indirect and Customs) in Writ Petitions in Category No.1 is answered in the affirmative, the Writ Petitions in Category No.2 3 may have to be allowed. 13. On the other hand, if the challenge to the impugned Notification No.22/2014, dated 16.09.2014 issued by the Central Board of Excise Customs in Writ Petitions in Category No.1 fails, the challenge to the impugned Show Cause Notices and impugned Orders-in- Original in Category No.2 3 will have to fail. 14. If the Writ Petitions challenging the impugned Notification No.22/2014, dated 16.09.2014 issued by the Central Board of Excise Customs in Category No.1 fails, it is for the respective petitioners in Category No.2 to submit of the jurisdiction of the jurisdictional adjudicating authority by filing their reply. The petitioners in Category No.3 will have to file appeal before the next appellate authority in the hierarchy of the appellate authorities prescribed under the Finance Act, 1994 read with Central Excise Act, 1944. 15. Therefore, I shall first deal with the challenge to the impugned Notification No.22/2014, dated 16.09.2014 issued by the Central Board of Excise Customs. PART - II ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner 5. Additional Director, Central Excise Intelligence, Additional Director, Service Tax or Additional Director, Audit Additional Commissioner 6. Joint Director, Central Excise Intelligence, Joint Director, Service Tax or Joint Director, Audit Joint Commissioner 7. Deputy Director or Assistant Director, Central Excise Intelligence, Deputy Director or Assistant Director, Service Tax or Deputy Director or Assistant Director, Audit Deputy Commissioner or Assistant Commissioner 8. Senior Intelligence Officer, Central Excise Intelligence, Superintendent, Service Tax or Superintendent, Audit Superintendent 9. Intelligence Officer, Central Excise Intelligence, Inspector, Service Tax or Inspector, Audit Inspector 17. By the impugned Notification No.22/2014-ST dated 16.09.2014, the Central Board of Excise Customs has appointed the officers from the Directorate General of Audit, Directorate Gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the Central Board of Indirect Taxes Customs itself has clearly specified the local limits , within which, jurisdictional Central Excise Officers can exercise jurisdiction by virtue of Notification No. 12/2017-C.E. (N.T) dated 09.06.2017 r/w. Notification No. 13/2017-C.E. (N.T) dated 09.06.2017. 26. This Notification relating to jurisdictional Central Excise Officers has not been challenged by the Petitioner. It is submitted Rule 3 of the Service Tax Rules, 1994 makes it incumbent upon Central Board of Indirect Taxes Customs to stipulate local limits within which the respective officers can exercise jurisdiction. 27. It is submitted that the impugned Notification No.22/2014- S.T. dated 16.09.2014 states that officers from the Directorate of Goods and Service Tax Intelligence can exercise jurisdiction throughout India. It is submitted that such dilution of local limits violates the principle of comity. 28. It is submitted that the term Local limits must be understood as a territory confined to a part of a State and the dictionary meanings of local reflects the understanding that local refers to a particular place. 29. The very reason for the requirem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that the petitioners in the instant cases are facing difficulties which were experienced by the petitioners before the High Courts in P.Sivaramakrishnan referred to supra, i.e., the petitioner would be subjected to the jurisdiction of multiple assessing officers of the same status exercising co-extensive powers over the same area. It is submitted that such an unguided operation of a statute is clearly violative of Article 14 of the Constitution of India. 37. It is submitted that the doctrine of comity of jurisdiction requires that there should no overlapping of exercise of powers and functions, for the proper administration of justice. It is submitted that where the statute confers the same power to perform an act on different officers belonging to different departments, the officers cannot exercise their powers in the same case and where one officer has exercised his powers of assessment, the power to order re-assessment must also be exercised by the same officer or his successor and not by another officer of another department though he is designated to be an officer of the same rank. This argument appears to be inspired from the decision of the Hon ble Supreme Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from patent lack of jurisdiction. It is submitted that the doctrine of comity will be violated if the impugned Notification No. 22/2014-S.T. dated 16.09.2014 were allowed to survive. 43. The decisions cited by the Respondents - Revenue are distinguished. It is submitted that they are not applicable to the instant challenge at all, for the reasons demonstrated below: Sl Decisions cited in Respondent s Compilation dated 24.08.2021 Petitioner s reasons to distinguish decisions 1 Duncan Agro Industries Ltd. vs. UoI1989(39) E.L.T. 211 (Del.) [Pages 1-21 of the Respondent s Compilation dated 24.08.2021] ?The decision in Duncan Agro was rendered under the Central Excise Regime, where the statutory scheme under which Central Excise officers were vested with jurisdiction did not mandate that only one Collector could wield jurisdiction over an assessee. [Paras 19-24] ?Here, the instant challenge to NN 22/2014 arises under the service tax regime, where Section 73 of the Finance Act, 1994 categorically states that the Central Excise Officer may issue a show cause notice. ? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondent s Compilation dated 24.08.2021] 5. Order dated 24.02.2021 in ThangamayilJewelry Ltd. vs. ADDGI WP (MD) 16271 of 2020 [Pages 59-71 of the Respondent s Compilation dated 24.08.2021] ?Paragraph 10 of the Hon ble High Court s Order held that the Additional Director General (Adjudication) had territorial jurisdiction to go into the issue raised in the Show cause notice. ?The said decision was also rendered under the GST regime, where the statutory scheme (insofar as jurisdiction is concerned) is admittedly different from the Service tax regime. ?The decision is not applicable to the instant challenge, because Section 73 of the Finance Act, 1994 requires the central excise officer to issue a notice and Rule 3 of the STR mandates that central excise officers may exercise powers within such local limits as may be prescribed. 44. It is therefore submitted that none of the decisions sought to be relied on by the Department are relevant to the challenge laid to NN 22/2014 in the instant case. It is prayed for allowing these Writ Petitions. PART IV CATEGORY - 2 W.P.No.24960 of 202 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said C AG report issued for the year ended March 2017, in relation to the 'Entertainment Sector' which was tabled on the Parliament in the month of August 2017, it would reveal that the Ministry has conceded to that there is an ambiguity where it has held that sponsorship service cannot be equated to 'exempted services' on which reversal under rule 6 of the CENVAT Credit Rules, 2004 is warranted. Copy of the summary extract is enclosed as Annexure-A. 4. Subsequent to the tabling of the above report in the Parliament, an audit was conducted by the Jurisdiction Service Tax Officer (proper office) in the month of May 2019, where petitioner's availment of CENVAT and other Service Tax compliances were duly verified and audited by the proper officer of Service Tax, who raised certain objections in relation IPL business, but nothing in the context of CENVAT Credit reversal pertaining to sponsorship income. The said observations by the proper officer were duly acknowledged and consequently were paid/settled by the petitioner. Copy of Audit Closure Report issued in the month of June 2019 is enclosed as Annexure-B. 5. In light of the above factual matrix, an audit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Counsel further submits that all the decisions were considered by this Court and distinguished. 53. It is submitted that the petitioner has challenged the impugned Order-in-Original No.11/JC/ST/2021 dated 25.08.2021 passed by the third respondent pursuant to the Show Cause Notice dated 30.12.2020 issued by the second respondent. 54. The learned counsel for the petitioner submits that the connected W.P.No.24677 of 2021 was dismissed. Therefore, the petitioner may be given liberty to work out the alternate remedy before the Appellate Commissioner. W .P.No.17941 of 2020 [ Chennai Super Kings Cricket Limited Vs. Additional Director General, Directorate General of GST Intelligence. ] 55. The petitioner has challenged the impugned show cause notice dated 23.10.2020 bearing reference No.F.No.IV(6)LdZU/ST/05/2020- 2021/1961. 56. Appearing on behalf of the petitioner, the learned senior counsel submits that before issuing the impugned show cause notice, an Audit Intimation Notice dated 16.02.2016. The petitioner also replied on 02.03.2016 and also visited the petitioner on 20.09.2016. Pursuant to which, an Audit Report dated 17.10.2016 was generated, the petitioner was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner and therefore it cannot be said that there was any suppression of facts. 63. Mr.V.Sundareswaran, learned Senior Panel Counsel for the respondents has drawn attention to the following decisions:- i. Commissioner of Central Excise, Bangalore Vs Brindavan Beverages (P) Limited, 2007 (213) E.L.T. 487 (S.C.) ii. R.R.Financial Consultants Limited Vs Union of India, 2014 (33) S.T.R. 12 (Del.) iii. Abhishek Mundhra Vs Additional Director General, Directorate General of Revenue Intelligence, Chennai, 2015 (318) E.L.T. 245 (Mad.) iv. Additional Director, Directorate of Revenue Intelligence, Chennai Vs M.Rathakrishnan, 2017 (354) E.L.T. 483 (Mad.) v. Karnataka Power Transmission Corporation Limited Vs Principal Commissioner of Central Excise, LTU, Bengaluru, 2019 (366) E.L.T. 716 (Kar.) 64. The learned Senior Panel Counsel further submits that all the decisions were considered by this Court and distinguished. W.P.No.12853 of 2020 [M/s.Redigton (India) Limited Vs. P rincipal A dditional Director General, Directorate General of GST.] 65. The Petitioner has challenged the impugned show cause notice No. F.No INV/DGGI/CZU/ST/98/2019/5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervice by an employee to the employer in the course of or in relation to his employment (c) fees taken in any Court or Tribunal established under any law for the time being in force. Section 2(51) : Taxable service means any service tax is leviable under section 66B. 72. The learned Counsel for the petitioner further submits that the term Service has been defined to mean any activity carried out by a person for another for certain consideration, the taxable service are defined under section 66B. The Sections reads as under;- Section 66B - There shall be levied a Tax ( hereinafter, of Goods referred to as the service tax) at the rate of fourteen percent on the value of all services, other than those services specified in the negative list, provided or agreed to be provided in the taxable territory by one person to another and collected in such manner as may be prescribed. Section 66D- Negative List of Services - The negative list shall comprise of the following services, namely: (a) services by Government or local authority excluding the following services to the extent that they are not covered elsewhere .. (e) Trading of goods; 73. The learned cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he service tax department after verification of returns and financial statements. 80. But the petitioner is aware that the audit and intelligence are two different wings of the department, there were certain issues that were not brought to the notice of the audit which was unearthed during the course of investigation by DGGI officers which has resulted in the issuance of the Show Cause Notice. W .P.No.14039 of 2021 [ I L FS Tamil Nadu Power Corporation Ltd. V s. Additional Director General, Directorate of GST Intelligence. ] 81. The petitioner has challenged the impugned show cause notice No.02/2021-ST dated 01.03.2021 issued by the 1st respondent seeking to demand service tax from the petitioner from the period between 01.10.2015 to 30.06.2017 there is period covering from the implementation of GST. 82. It is the specific case of the petitioner that the petitioner has entered into a power purchase agreement with TANGEDCO for supplying electricity generated by the petitioner. 83. The learned counsel for the petitioner submits that as far as supply of electricity is concerned, the issue is not in dispute as the petitioner was paying VAT under the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. The learned counsel for the petitioner submits that there is no case made out for invoking the extended period of limitation as there is no positive suppressions by the petitioner. That apart, it is submitted that the fact that the Tribunal had to constitute a larger bench to resolve the issue in any event stands answered in favour of the petitioner in the said decisions of the Tribunal in Repco case also shows that the petitioner cannot be accused of suppression of facts to justify invoking the extended period of limitation. 91. He therefore submits that the impugned show cause notice about from the without jurisdiction has having been issued by a person which is not obtained to issue show cause notice in terms of Notification No.22/14-ST dated 16.09.2014 has to go. 92. Opposing the prayer, the learned counsel for the respondent submits that with effect from 01.07.2012, the definition of services has been incorporated in the Finance Act, 1944. It is submitted that the definition includes declared services within the meaning of Section 65B(22) of the Finance Act, 1944. 93. It is submitted that the amount of consideration received by the petitioner from the capacity ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor General, Directorate of GST Intelligence (Hqrs.)] [V.Ramanujan Vs. Additional Director General, Directorate of GST Intelligence (Hqrs.)] [M.P.Vijay Kumar Vs. Additional Director General, Directorate of GST Intelligence (Hqrs.)] 101. The petitioners have challenged the impugned Show Cause Notice dated 23.10.2019 issued by the first respondent bearing Ref.F.No.51/INT/DGGI/HQ/2019/6757. The demand in the impugned Show Cause Notice pertains to the period between April 2014 to November 2016. 102. It is the specific case of the petitioners that the petitioners are providing end to end information and communication network service of various clients who were stayed in abroad and therefore the petitioners had treated the aforesaid service as export of service within the meaning of Rule 6A of the Service Tax Rules, 1944. 103. The learned counsel for the petitioners submits that the impugned Show Cause Notice precedes the pre-consultation notice dated 22.10.2019, wherein, the petitioners were called for a personal hearing on 23.10.2019, it is the date on which the impugned Show Cause Notice has been issued. It is therefore submitted that the impugned Show Cause Notice has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1994. 107. On merits, the learned counsel for the petitioners submits that the classification adjudicated by the petitioners treated the aforesaid service as export of service is contrary to the contracts entered between the petitioners and its customers. It is submitted that the place of provision of service by the petitioners in terms of place of provision of Service Rules, 2012, the location of the recipient of service in terms of Rule (3) of the aforesaid rules reads as under:- 3. The place of provision of a service shall be the location of the recipient of service: Provided that in case of services other than online information and database access or retrieval services (Inserted vide Notification 46/2012- Service Tax) where the location of the service receiver is not available in the ordinary course of business, the place of provision shall be the location of the provider of service. 108. The learned counsel for the petitioners further submitted that it is not open for the respondents to treat the service that of a Online Information Database Access and Retrieval Service, as defined in Rule 2(l) of the Place of provision of Service Rules, 2012 read with Rule 2(1)( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for first to fourth respondents further submits that when the statements/submissions were recorded under Section 14 of the Central Excise Act, 1944 as made applicable to the Finance Act, 1994, employees of the petitioner's company have accepted that the services provided by the petitioners was that of the Online recipient service and therefore even on this count also it is not open for the petitioners to challenge the impugned Show Cause Notice on merits. 114. It is further submitted that whether there was a suppression of facts or not is to be adjudicated and therefore the petitioners should be relegate to work out the remedy before the respondents by filing suitable reply to the impugned Show Cause Notice. It is therefore submitted that the writ petitions filed by the petitioners may be dismissed. 115. Supplementing the arguments advanced by the learned senior panel counsel for the first to fourth respondents, Mrs.R.Hemalatha, learned Senior Standing Counsel for the fifth respondent submits that the impugned order in the present writ petition is premature inasmuch as the petitioners have to work out the remedy, the Court have to circumspect in entertaining the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the petitioner submits that the impugned order is unsustainable as the Show Cause Notice has been issued by an Officer without jurisdiction. In this connection, already a writ petition has been filed and therefore reiterates that the demand has to go. The learned counsel for the petitioner states that the decision of this Court taking a different view in W.P.No.20969 of 2021 dated 28.01.2022 can be distinguished . 121. It is submitted that when an order was passed in the above cases, attention of the Court was not brought to amendment to Section 37B of the Central Excise Act, 1944 which provision has been made applicable to the provisions of the Finance Act, 1994. 122. The learned counsel further submits that vide Section 144 of the Finance Act, 2016 with effect from 14.05.2016, there was a addition to Section 37B of the Central Excise Act, 1944. It is submitted that as a consequence of the above amendment, the Central Board of Direct Taxes issued circular dated 10.03.2017 which enjoins the respondents to issue a pre-consultation notice. 123. The learned counsel for the petitioner further submitted that prior to 27.02.1997, Section 37B of the Central Excise Act, 1944 rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... By virtue of Section 37B the Board can issue orders, instructions or directions to the Central Excise Officers and such Officers must follow such orders, instructions or directions of the Board. However, these directions can only be for the purpose of uniformity in the classification of excisable goods or with respect to levy of duties of excise on such goods. It is thus clear that the Board has no power to issue instructions or orders contrary to the provisions of the Act or in derogation of the provisions of the Act. The Board can only issue such direction as is necessary for the purpose of and in furtherance of the provisions of the Act. The instructions issued by the Board have to be within the four corners of the Act. If, therefore, the Act vests in the Central Excise Officers jurisdiction to issue show-cause-notices and to adjudicate, the Board has no power to cut down that jurisdiction. However, for the purposes of better administration of levy and collection of duty and for purpose of classification of goods the Board may issue directions allocating certain types of works to certain Officers or classes of Officers. The Circulars relied upon are, therefore, nothing more tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available, the existence of an alternate remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies. This principle has been crystallized by this Court in Whirpool Corporation v. Registrar of Trademarks, Mumbai (1998) 8 SCC 1 and HarbanslalSahni v. Indian Oil Corporation Ltd (2003) 2 SCC 107. Recently, in Radha Krishan Industries v. State of Himachal Pradesh Ors 2021 SCC OnLine SC 334 a two judge Bench of this Court of which one of us was a part of (Justice DY Chandrachud) has summarized the principles governing the exercise of writ jurisdiction by the High Court in the presence of an alternate remedy. This Court has observed: 28. The principles of law which emerge are that: (i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well; (ii) The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inition of the service in Section 653(44) of the Act. The services in the negative list were not liable to service tax. Similarly, those services specified under notifications issued under sub-section (1) of section 93 of the Finance Act, 1994 were exempted from payment of service tax. 134. From 2004, the central exercise duties/additional duty of excise payable under the Central Excise Act, 1944/ Customs Tariff Act, 1975 on inputs and on tax paid on input services under the provisions of the Finance Act, 1994 and utilized either for providing taxable service and/or manufacturing dutiable excisable goods were allowed as Cenvat Credit for discharging either the service tax and/or central excise duty liability or both as long as they were utilized either for providing such taxable service or for manufacturing excisable goods. 135. Though various services were brought within the purview of the service tax net over a period of time, there was no standalone enactment for levy and collect service tax all along. 136. Since there was no standalone enactment for levying service tax, several provisions of the Central Excise Act, 1944 were made applicable to Chapter V of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which has not been levied or paid or which has been short-levied or short-paid or the person to whom such tax refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice: Provided where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of - (a) fraud; or (b) collusion; or (c) wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax, by the person chargeable with the service tax or his agent, the provisions of this sub-section shall have effect, as if, for the words thirty months , the words five years had been substituted. Explanation.- Where the service of the notice is stayed by an order of a court, the period of such stay shall be excluded in computing the aforesaid period of thirty months or five years, as the case may be. (1A) Notwithstanding anything contained in subsection (1) except the period of thirty months of serving the notice for recovery of service tax), the Central Excise Officer may s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y a Central Excise Officer before service of notice on him under sub-section (1) in respect of such service tax, and inform the [Central Excise Officer] of such payment in writing, who, on receipt of such information shall not serve any notice under sub-section (1) in respect of the amount so paid : Provided that the Central Excise Officer may determine the amount of short-payment of service tax or erroneously refunded service tax, if any, which in his opinion has not been paid by such person and, then, the Central Excise Officer shall proceed to recover such amount in the manner specified in this section, and the period of thirty months referred to in sub- section (1) shall be counted from the date of receipt of such information of payment. (a) fraud; or (b) collusion; or (c) wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of service tax. 4(A) [* * * *] (4B) The Central Excise Officer shall determine the amount of service tax due under sub-section (2)- (a) within six months from the date of notice where it is possible to do so, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relating to levy of service tax by the Parliament is because the Board did contemplate creation of a separate cadre of officers employees for implementing the provision of Chapter V of the Finance Act, 1994. 143. It should be also kept in mind, that only three services were introduced in 1994. No Service Commissionerate was also contemplated in 1994 at the time when the Service Tax was first introduced. Various Service were later brought within the service tax net in the successive amendment to the Chapter V of the Finance Act, 1994 as they immensely contributed to the Gross Domestic Product(GDP) of the country. 144. Therefore, the officer from the Central Excise Department were considered best suited to implement the provisions of the Finance Act, 1994. Only in 2002, Service Tax Commissionerate were created and thus separate Commissionerates were formed in various Metropolitan cities. 145. The expression Central Excise Officer is neither defined in the Finance Act, 1994 nor in the Service Tax Rules, 1994 framed under Section 94(1) read with 94(2) of the Finance Act, 1994. Therefore, the definition of Central Excise Officer in Section 2(b) of the Central Excise Act, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1963. 150. Thus, by default all the officer of Central Excise Department are Central Excise Officers . Apart from them such other officers including an officers of the State Government invested by the Board constituted under the Central Boards of Revenue Act, 1963 with any of the power of a Central Excise Officer under the Act are Central Excise Officers . 151. It is under Rule 3 of the Central Excise Rules, 2002 the Board appoint ssuch person as it thinks fit as Central Excise officers to exercise all or any of the powers conferred by or under the Act and Rules. 152. Under Rule 3 of the Central Excise Rules, 2002, the Board may, by notification, specify the jurisdiction of officers and such officer may exercise the power and discharge duties conferred or imposed by or under the Act or the Rules on any other Central Excise Officer who is subordinate to him. Rule 3 of the Central Excise Rules, 2002 reads as under:- Rule 3. Appointment and jurisdiction of Central Excise Officers. - (1) The Board may, by notification, appoint such person as it thinks fit to be Central Excise Officer to exercise all or any of the powers conferred by or under the Act and thes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igence 7.Intelligence Officer 1.Chief Commissioner 2.Commissioner 3.Additional Commissioner 4.Joint Commissioner 5.Deputy Commissioner or Assistant Commissioner 6.Superintendent 7.Inspector 157. It is the Central Excise Officer as defined in Section 2(b) of the central Excise Act, 1944 who can be appointed as the Central Excise Officers for the purpose of Rule 3 of the Service Tax Rules, 1944. 158. Under Notification No.38/2001-C.E. (N.T), dated 26.06.2001, the Board, invested the officers mentioned therein with all the powers to be exercised by them throughout the territory of India as an officer of Central Excise of the rank specified in the corresponding entry in column (3) of the said Table, such powers being the powers of a Central Excise Officers conferred under the said Act and rules made thereunder with effect from 1st July, 2001. 159. Therefore, without doubt, the officers from the Directorate are Central Excise Officers as they have been vested with the powers of central exercise officers. The officers of the Directorate of Central Excise Intelligence are empowered to act as Central Excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner 4.Joint Commissioner 5.Deputy Commissioner or Assistant Commissioner 6.Superintendent 7.Inspector 165. It is the Central Excise Officer as defined in Section 2(b) of the central Excise Act, 1944 who can be appointed as the Central Excise Officers for the purpose of Rule 3 of the Service Tax Rules, 1944. 166. Under Notification No.38/2001-C.E. (N.T), dated 26.06.2001 , the Board, invested the officers mentioned therein with all the powers to be exercised by them throughout the territory of India as an officer of Central Excise of the rank specified in the corresponding entry in column (3) of the said Table, such powers being the powers of a Central Excise Officers conferred under the said Act and rules made thereunder with effect from 1st July, 2001. 167. Therefore, without doubt, the officers from the Directorate are Central Excise Officers for the purpose of Rule 3 of the Service Tax Rules, 1994 as they have been vested with the powers of Central Exercise Officers . The Officers of the Directorate of Central Excise Intelligence are empowered to act as Central Excise Officers Pan India. 168. As per the Rule 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Directorate of Central Excise Intelligence (presently The Directorate of GST Intelligence) is one of the Directorate of the Board. 173. Since the Board can invests the powers of a Central Excise Officer on any persons including an officer of the State Government the officers of the Directorate of Central Excise Intelligence (presently The Directorate of GST Intelligence) are Central Taxes Officers for the purpose of Finance Act, 1994. 174. Senior officers from the Central Excise Department are grafted in to the Directorate General of Goods and Service Tax Intelligence (DGGSTI) [formerly the Directorate General of Central Excise intelligence (DGCEI)]. 175. Vide Circular dated 14.01.2022 bearing reference F.No.DGGI/A-12026/8/2019-Estt./Esst./7334 issued by the Central Board of Excise and Customs to the Director General (All) and the Pr.Chief Commissioner / Chief Commissioner of CGST Central Excise of respective Zonal Units. Text of Circular dated 14.01.2022 bearing reference F.No.DGGI/A-12026/8/2019-Estt./Esst./7334 is reproduced below:- Sub:- Preparation of panel for appointment of Senior Intelligence Officer in the Director General of GST Intelligence, Zonal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers and functions of the officers and employees deputed in the Board have been explained in Office Order No.07/Ad(IV)2017 (F.No.A-11013/18/2017-Ad.IV), dated 12.06.2017 and in its website. The functions and powers in the aforesaid Office Order dated 12.06.2017 and in the website are captured under:- The functions and powers in the website of the Department of Revenue (DOR) The functions and powers in the aforesaid Office Order dated 12.06.2017 The officers of DGGSTI are empowered to discharge the functions of Central Taxes Officers as well as Central Excise and Customs officers. Their functions and duties are as under:- (a) Collection, collation and dissemination of intelligence relating to evasion of Goods Service Tax and Central Excise Duties and Service Tax on an all India basis. (b) Studying the modus operandi of evasion relating to Goods Service Tax, Central Excise and Service Tax and to alert the concerned field formations about it. (c) Studying the price structure, marketing patterns and classification of goods and services in respect of which possibilities of evasion are likely with a view t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... collect, collate and disseminate intelligence relating to evasion of central excise duties. (b) To study the price structure, marketing patterns and clarification of commodities vulnerable to evasion of Central Excise duty . (c) To coordinate action with other departments like income tax etc. in cases involving evasion of central excise duties; ( d) To investigate cases of evasion of central excise having inter- Commissionerates ramification; and (e) To advise the Board and the Commissionerates on the modus operandi of evasion of central excise duties and suggest appropriate remedial measures, procedure and practices in order to plug any loopholes. 177. Thus, officers of Directorate General of Central Excise Intelligence are Central Excise Officers for the purpose of Section 2(b) of the Central Excise Act, 1994. They are empowered to exercise power pan India under Notification No.38/2001-C.E. (N.T), dated 26.06.2001. 178. Therefore, the other ground of challenge to the impugned Notification No.22/2015-ST dated 16.9.2014 that pan India powers have been vested with the officers from the Directorate of Central Excise Intelligence (DGCEI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7. Superintendent, Central Excise Intelligence Superintendent of Central Excise for whole of India 8. Inspector, Central Excise Intelligence Inspector of Central Excise 182. Later in exercise of the powers conferred by Section 37A of the Central Excise Act, 1944, the Central Government, by virtue of Notification No.11/2007-C.E. (N.T.), dated 01.03.2007, directed that the powers exercisable by the Central Board of Excise and Customs under the provisions of Rule 3(2) of the Central Excise Rules, 2002, shall also be exercised by the Chief Commissioner of Central Exercise for the purpose of adjudication of notices issued under the provisions of the Act or the Rules made thereunder within his jurisdiction. 183. By virtue of Notification No.16/2007-S.T., dated 19.04.2007, in exercise conferred by Section 83A of the Finance Act, 1994 read with Rule 3 of the Service Tax Rules, 1994, the Central Board of Excise and Customs appointed the Officers of the Central Excise specified in Column (2) of the Table therein and invested with them all the powers of Central Excise Officer specified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession of the Notifications of the Government of India in the Ministry of Finance, Department of Revenue, Central Board of Excise and Customs vide Notification No.11/2007-Central Excise (N.T.) dated 01.03.2009, No.16/2007-Service Tax dated 19.04.2007 and No.6/2009 - Service Tax dated 30.01.2009. 187. The Central Government directed that the powers exercisable by the Central Board of Excise and Customs under Rule 3 of the Central Excise Rules, 2002 and Rule 3 of the Service Tax Rules, 1994, may be exercised by the following officers for the purpose of assignment of adjudication of notices to show cause issued under the provisions of the Central Excise Act, 1944 or the Finance Act, 1994, to the Central Officers subordinate to them:- a. The Principal Chief Commissioner of Central Excise and Service Tax; or b. The Chief Commissioner of Central Excise and Service Tax . 188. Several other Notifications were also issued before and after the impugned Notification was issued are detailed as under:- S. No. Date Notification CEA 1944 CER 2002 F.A. 1994 STR, 1994 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hort-paid or erroneously refunded. 192. As mentioned above, under Rule 3 of the Service Tax Rules, 1994, the Board can appoint any other officer to exercise power within the local limits . However, that would not mean that the officers of Directorate of Central Excise Intelligence (DGCEI) [presently The Directorate of GST Intelligence] who are already Central Excise Officers under Notification No.38/2001-C.E. (N.T), dated 26.06.2001 for whole of India cannot exercise power pan India. Notification No.22/2014-ST dated 6.09.2014 is to be read in conjunction with Notification No.38/2001- C.E. (N.T), dated 26.06.2001. 193. Therefore, the 2nd argument advanced on behalf of the petitioners as far as jurisdiction to issue Show Cause Notice cannot be accepted. 194. Therefore, the argument of some of the counsel for the petitioners that the officer of Directorate of Central Excise Intelligence (DGCEI) [presently The Directorate of GST Intelligence] are not Central Excise Officer and cannot exercise function Pan India cannot be accepted. 195. No restriction can be inferred on the powers of the Board while appointing the officers of the Directorate of Central Excise Intellig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt is not burdened with show cause proceedings. However, that by itself would not mean impugned show cause proceedings initiated against the petitioner would be either illegal or without jurisdiction. The show cause proceedings initiated under Section 73 of the Finance Act, 1994 seeking to demand tax which was allegedly not paid, cannot be allowed to be scuttled in the light of the above circular. In any event circulars are not binding on the Courts as per the decision of the Hon'ble Supreme Court in COMMISSIONER OF CENTRAL EXCISE Vs. RATTAN MELTING AND WIRE INDUSTRIES (2008) 231 ELT 22 SC. Therefore, I do not find any merits in the present writ petition as the impugned show cause notice has been issued a competent authority namely The Commissioner, Office of the Commissioner of GST and Central Excise, Chennai Outer Commissionerate under the Finance Act, 1994. The respective noticees can file their reply to the impugned show cause notice and meet out the allegations on merits. 10. I am therefore not inclined to interfere with the impugned show cause proceedings. The noticees are directed to file their separate reply to the show cause notices. 11. This writ petition stands ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
