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TMI Blog2023 (9) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... ing jurisdiction to decide the issue in hand has not been decided by this Tribunal. The appellant in support relied on the decision of this Tribunal in the case of Commissioner of Central Excise, Siliguri Vs. M/s. Mall Eximp (P) Ltd (Misc.Order No.M-183-185/KOL/08 dated 30.06.2008) to say that Shri C.M.Mehra was not having any jurisdiction to pass the adjudication order. 3. On the other hand, the ld.Authorised Representative appearing on behalf of Revenue, argued the matter at length and submits that the issue of jurisdiction was not addressed by the appellant before the adjudicating authority and as it is a matter of fact, the appellants were barred from raising it for the first time before this Tribunal. To support his contention, he relied on the decision of the Tribunal in the case of Hindustan Insecticides Limited Vs. Commissioner of Central Excise & Service Tax (LTU) reported in 2012 (286) ELT 208 (Tri.- Del.). He also relied on the decision of the Tribunal in the case of Hindustan Organic Chem. Ltd. Vs. Commissioner of Central Excise & Customs, Mumbai VII reported in 2010 (251) ELT 454 (Tri.Mumbai). He submits that that the appellant has not produced any evidence to suggest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icant further submits that there was not locus standi to adjudicate the issue in dispute in as much as the concerned Commissioner, who had been asked by the jurisdictional Chief Commissioner to hold the charge of Siliguri Commissionerate, was not vested with powers and to deal with adjudication proceedings in terms of Rule 3 of Central Excise Rules, 2002. It is interesting to note that the CBEC, New Delhi had not delegated the powers to the Chief Commissioner, nor the Government had issued any notification empowering the Chief Commissioner under Section 37A of the Cenral Excise Act, 1944. The Chief Commissioner and the Commissioner exceeded their jurisdiction while exercising the power in their own domain. Both the authorities acted contrarily to the provisions of law in vogue. In this regard the Hon'ble Bench had observed, "We find that the impugned order has been passed by Shri C.M. Mehra in his purported capacity as Commissioner of Central Excise & S. Tax, Siliguri. We have held in the case of Commissioner of Central Excise, Siliguri Vs. Mall Exim (P) Ltd., vide Tribunal's Misc. Order No. M-183-185/KOL/08 dated 30.06.08, that Shri Mehra lacked jurisdiction by the Board. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he issue in hand or not? 8. The said issue came up before this Tribunal in the case of Mall Eximp Ltd. (supra), wherein this Tribunal observed as under: "9. Shri Das, learned Senior Advocate points out that the term, 'Central Excise Officer' has been defined in Section 2 of the Central Excise Act, 1944 to mean Chief Commissioner of 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. We note that Section 33 of the Act specifies the powers of adjudication of the Commissioner of Central Excise and other Officers; Section 37 empowers the Central Government to make rules under the Act; and Section 37A empowers the Central Government to delegate powers of the Board to a Chief Commissioner among others, by notification in the Official Gazette. 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) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner of Central Excise (Appeals) and jurisdiction of such Commissioner of Central Excise (Appeals) shall be limited to the jurisdiction so specified." This proviso appears to suffer from excessive delegation in the absence of a notification issued under Section 37A authorising the Board to delegate its powers. In any case, it does not permit a Chief Commissioner to alter jurisdiction of a jurisdictional Commissioner or to appoint him to an additional jurisdiction as its scope is limited to the jurisdiction of Commissioner (Appeals). 13. We find that the Board has assigned all India jurisdiction to all Commissioners under Notification No. 39/2001-CE(NT) : dated26.06.01 but only for the purpose of adjudication and investigation of cases to be assigned by the Board. The Notification No. 11/2007-CE(NT) : dated 01.03.2007 issued under Section 37A and cited by the learned J.C.D.R. has to be interpreted in the context of Notification No. 39/2001-CE(NT). Both the notifications read together would allow a Chief Commissioner to allocate adjudication work within his jurisdiction to any Commissioner and such Commissioner will not lack jurisdiction to adjudicate such specially assigned cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Mall Eximp Ltd. (supra) has already taken cognizance of the issue, whether Shri C.M.Mehra, Commissioner of Central Excise & Service Tax, Siliguri, was having jurisdiction to file a miscellaneous application or not, in his capacity as jurisdictional Commissioner holding additional charge of the Commissionerate, as per orders of the Chief Commissioner, and has decided that he was not having the required jurisdiction. 10. Before proceeding further, however, it is stated that in the current context and status of the law as analyzed in following paras, wherever for the words Chief Commissioner, the words Principal Chief Commissioner and wherever the word Commissioner, the words Principal Commissioner may also be read into to cater to the present day realities. 11. As stated, the question for consideration that emerges in the present matter is specific to the case of Sri C.M. Mehra, with regard to exercise of jurisdictional control as Commissioner, Central Excise, Siliguri and so stated in Para 7 above. However, in generic terms, it can be also translated to suggest/indicate as follows: Whether an Officer, holding charge of the Commissionerate in accordance with such an order/empower ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 Central Excise Officer under this Act.] Another important provision of law around which the present question revolves is Rule 3 of Central Excise Rules. The said rule is enumerated hereunder: Central Excise Rules, 2017 (Notification No. 19/2017-C.E.(N.T.) : dated 30-6-2017) 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 these rules. (2) The Board may, by notification, specify the jurisdiction of a Principal Chief Commissioner of Central Excise or Chief Commissioner of Central Excise as the case may be, Principal Commissioner of Central Excise or Commissioner of Central Excise, as the case may be or Commissioner of Central Excise (Appeals) for the purposes of the Act and the rules made thereunder. (3) Any Central Excise Officer may exercise the powers and discharge the duties conferred or imposed by or under the Act or these rules on any other Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ol/2008 dated 9th July 2008, in the case of the appellant at the time of hearing of the Stay Petition had interalia observed: "4. We have considered the submissions from both sides. We have waived the requirement of predeposit in respect of M/s. Permanent IP Systems, vide our Order dated 07.07.08 in Service Tax Appeal Nos. 311- 312/08 on the following grounds:- (i)................................... (ii)............................................. (iii) We find that the impugned order has been passed by Shri C. M. Mehra in his purported capacity as Commissioner of Central Excise & Service Tax, Siliguri. We have held in the case of Commissioner of Central Excise, Siliguri Vs. Mall Eximp (P) Ltd. vide Tribunal's Misc. Order No. M-183-185/KOL/08 dated 30.06.08, that Shri Mehra lacked jurisdiction to act as Commissioner, Siliguri under the Central Excise statute not having been appointed to and vested with such jurisdiction by the Board. Consequently, the impugned Order passed by him under the Service Tax Statute also prima facie appears to have been passed without having the necessary jurisdiction. " We note that in the present cases, part of the period is covered by Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise & Service Tax Commissionerate, Siliguri, while holding specific charge of Central Excise & Service Tax Commissionerate, Haldia and additionally assigned the charge of Commissioner of Central Excise & Service Tax, Siliguri by the Chief Commissioner, was challenged. In the said Order, the Tribunal dealt with the aspect of locus standi of the said Commissioner-Sri C.M. Mehra, with regard to the filing of a Miscellaneous Application, before the Tribunal, filed pursuant to the orders of the Hon'ble High Court, Calcutta. This was in the context of the authorization for the filing of the appeal before the Tribunal and rendering of the opinion of the Committee, in terms of Sec.35B(2) of the Central Excise Act. The Tribunal then observed that in judicial proceedings a person concerned with, is required to have a locus standi in specific matters of action. This being so basic is generally taken as granted and that a person having no locus standi would not commence an action in judicial proceedings. Pointing out that in taxation laws in particular, powers and duties of public officials and statutory authorities are not only defined but also the manner of exercise of such pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Service Tax law would reveal that unlike the Central Excise provisions (in stricto sensu), the Service Tax provisions do not provide for the (i) that to act as an officer of Service Tax, a notification by the Board is called for and (ii) that the publication of such a notification/intimation in the official gazette (refer Rule 2(f) of the Central Excise Rules, 2002) is also not called for 22.1. Further, in the Service Tax statute, room for the integration of the fact of appointment of a Central Excise Officer with in the territorial limits also exists and the fact of appointment of a Central Excise Officer can also be linked with functional discharge of powers. 22.2. More importantly, under the Service Tax statute, the officers of allied departments and agencies are not called upon to be appointed and discharge the functions of a Service Tax Officer. This essentially is the reason for there being noticeable prima facie distinction between the provisions of the two statutes. 23. Who is a Central Excise Officer, is defined in Section 2 of Central Excise Act, 1944. The said definition is enumerated above in para 13. Thus from the apex level of Principal Chief Commissioner down t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rank and vested with limited functions and powers. This is pointed out to state that the contextual framework, adopted by the co-ordinate bench of this Tribunal, may not have led it to analyze the legal position in the spirit of the law, over-riding the stated provisions. It was extra-judicial course of action, of the co- ordinate bench to consider/interpret the two sub-rules-Rule 3(1) and Rule 3(2) as a subset of one another. 26. The Board once having notified A,B,C as a Central Excise Officer under Rule 3(1) and having also notified X,Y,Z as territorial jurisdictions, in terms of Rule 3(2) of the Central Excise Rules, 2002, and in accordance with the stipulations of Rule 2(f) ibid, that is by way of a notification in the official gazette, it nowhere flows from the law that assigning A to zone X, B to zone Y and C to zone Z or in any other manner can only be done by the Board and none else. It is so, as: (a) The law only mandates the publication of the incorporation of the individual (read post /designation) as a Central Excise Officer by way of a notification (and not the territorial assignment of the charge to an individual viz. the Central Excise Officer). (b) Once an indi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... als), Chief Commissioner etc. 29. To actually understand the legal provisions, it is necessary to make the distinction between authorization of powers in personam and that in rem. Thus the appointment of an individual (read "such person"),as a Central Excise Officer and subsequent elevations to defined levels of a Central Excise Officer are assignments/titles in the nature of in personam, while it would be more apt to state that locating the Officer of Central Excise to a given jurisdiction could relatively be an action in the category of in rem. 30. Thus, having specified a jurisdiction which is not disputed and having identified individuals (including Sri CM Mehra) as Central Excise Officers, it is not so mandated that the Board alone can post the individual (Central Excise Officers) to a given charge (jurisdiction) and it cannot be done by any subordinate officer in the absence of delegation of power. For the reason, any interpretation restricting the scope of this power, its free flow and to state as its vesting only in the Board, is nowhere enshrined in law. There is nothing in law to bring into discussions for this purpose, the concept of delegation of powers as per Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge of their jurisdiction only by the Chief Commissioner /Commissioner as the case may be. If the law as propounded in Mall Eximp (P) Ltd., is applied to such a situation, there would not only be complete chaos and anarchy in administering the law but the resultant situation may not be short of an interpretational holocaust of the statute. Also as an aside, it may be interesting to point out that on the Direct Taxes side too, the practices followed and the legal position are not far removed from the one on the indirect taxes side. Thus subordinate officers assigned to a specific charge, by the Board and placed under the administrative control of the Chief Commissioner are also assigned (on need basis) charge of territorial jurisdictions falling within the jurisdiction of the said Chief Commissioner, a practice akin to the one on indirect taxes front. 33. While the Assistant Commissioner is a direct consequence of initial selection and appointment of the individual, all other levels in the chain of hierarchy are a consequence of promotion and career up gradation in course of time. Also the Commissioner on the Appeals side too are so defined as to be a Central Excise Officer. Apa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or in any other manner, not so specified, obviously at the discretion of the Board. The Rule further empowers the Board with the authority, to either vest in such Central Excise Officer all or limited powers provided under the statute. The Rule thus actually vests in the Board, the discretion to even entrust, limited powers upon a Central Excise Officer. There is nothing in the rule, to suggest that such appointment/ publication by way of a notification is mandatory. Even rule 2(f) ibid-which states ("Notification means the notification published in the official gazette"), does not come to aid in as much as it only defines the meaning of the word notification and as long as the rule clearly uses the term "may" it is not obligatory that such appointment is limited to the publication of a notification only in the official gazette. This rule further cannot be interpreted to read and mean that each time an officer who is already appointed as the Central Excise Officer, is promoted to a different/higher capacity such a publication of notification becomes essential. There is no denying the fact that the officer was and continues to remain a Central Excise Officer after the initial appoin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thority i.e. the Central Government and the individual) bind each other into a relationship. This could be at the lowermost rung of the ladder indicated to be as a Central Excise Officer in the statute or in any other capacity of Central Excise Officer so identified. It is somewhat akin to that the date of birth of a person is in effect the "birthday" i.e. date on which the person was born, while all such birth days in subsequent years are in effect "anniversaries". It is equally important to note here that the implication and provisioning for the said sub rule is only restricted to the selection/specification/nomination/identification considered as appointment of the person as a Central Excise Officer. It is important to note that the said rule does not link such appointment with a given jurisdictional charge in as much as the scope of the sub rule does not go beyond the appointment of such a person thought to be fit as a Central Excise Officer and vested with limited or all powers and so notified. There is no further clause in the sub rule that goes on to further state as "and post/assign the said Central Excise Officer to the............... charge/jurisdiction". Hence, it is ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer as considered to be imperative in the Mall Eximp (P) Ltd. case, neither actually flows in law, nor is made out to be so necessary. Furthermore, having posted/assigned an already appointed Central Excise Officer to a specific jurisdiction under the supervisory control of his immediate senior-Chief Commissioner/Commissioner, this scenario could effortlessly be replicated further down the ladder and chain of command. Under the circumstances, the authority of the Chief Commissioner /Commissioner to play with and post the officers to such a jurisdiction as felt appropriate is unquestionable. It can at best be a case that the Board assigns a particular Central Excise Officer (also read Commissioner) to a particular charge (also read-territorial jurisdiction of Chief Commissioner duly notified in official gazette) and in such an event the supervisory officer could only be hamstrung to assign him out of the said charge that too by reason of official decorum and propriety and not statutorily. It does not in the least bit disentitle the Chief Commissioner/Commissioner of his absolute authority to assign such Central Excise Officer to any other charge over and above that vested in the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imself as to be the member of such a committee and exercise legal functions as contemplated. However, such a scenario does not arise in situations where a supervisory controlling officer (read the Chief Commissioner) so assigns jurisdictional control of one of the identified territorial jurisdictions of the Commissionerate within his administrative control to one of his junior colleagues (read the Commissioner), who has been duly assigned to the supervisory officers administrative and juridical control by the Board. 43. Moreover the adoption of the ratio of Tribunal's decision in Mall Eximp (P) Ltd., supra in relation to the aspects concerning territorial jurisdiction, it is felt is like comparing oranges with apples as there is no akinness in the language of the statute made use of in Section 33 & Section 35B (1B) of the Act and the notifications issued thereunder. The questions in the two matters viz. Mall Eximp (P) Ltd., and in the case of Perfect Technologies are completely distinct, while in Mall Eximp (P) Ltd. it boiled down to the legality of status of Shri C.M. Mehra, holder of additional charge of Central Excise Commissionerate, Siliguri, in the present case the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principle of interpretation as well as the directions of the Hon'ble Apex Court has been given a complete go by, by the Tribunal in the case of Mall Eximp (P) Limited. Further, it is oft known and too well laid out, that in case of possibility of two reasonable views, the Courts ought to give preference to a construction that promotes constitutionality. Also it may be pointed that while this proposition holds for where the provision is susceptible to two possible views. In the present case, only one view appears plausible and the view canvassed in Mall Eximp (P) Ltd., only comes out by interlacing the statutory provisions with extraneous inputs and with imaginative construction, using aids that aren't even realistically required. Thus when the Central Excise Officer is defined and notified in terms of Section 2(b) of the Act, there is no substance in seeking a notification each time under the pretext of interpreting Rule 3(1) ibid. Likewise the law does not seek to damnify the authority of the supervisory controllers like Commissioner /Chief Commissioner, to allocate additional charge to such Central Excise Officer, who are placed under their supervisory administrative and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uties of the post during the absence of the regular incumbent of that post An officer appointed to perform the duties of an appointment can exercise administrative or financial powers vested in the full-fledged incumbent of the post but he cannot exercise statutory powers, whether those powers are derived direct from an Act of Parliament (e.g. Income Tax Act) or Rules, Regulations and bye-laws made under the various articles of the constitution (e.g. FRs. C.C.& A. Rules, C.S.Rs, Delegation of Finance Power Rules etc.). (Authority: Ministry of Home Affairs, OM No. F.7/14/61-Ests(A) dated 24.01.1963 received under C&AG of India's endorsement No. 285-Admnl/710-62 dated 15-2-1963." The above instruction at 1.7 above states "An officer appointed to perform the duties of an appointment." Such is not a case herein the least bit. Moreover, the preface of the manual containing the said instructions/clarification is with a disclaimer of not being quoted as an authority. Any clarification issued thereto will also meet a similar fate. 46. The Hon'ble Supreme Court in the case of ITC Vs. CCE- 2004(171)ELT 633SC had vide its order specifically stated that in fiscal statutes ordinar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (117) ELT 571 T-LB) had held that in understanding the provisions of the rules, the Tribunal was not to supplement or add words to the Rule. While it could be argued that the decision rendered in Mall Eximp (P) Ltd., is without the aid of any words to the provisions contained, but it is a fact that the manner of reading the law as interpreted in Mall Eximp (P) Ltd., gives rise to a meaning that does not flow from the language deployed in the statute unless extraneous words are added to it. In fact, such juxtaposition of the various provisions is nowhere contemplated or visualized or stated to be so and it appears to be the extraneous creation of the Hon'ble bench. In fact, a plain reading of the judgement in Mall Eximp. Pvt. Ltd. gives a sense of going overboard and over zealously hunt for ambiguities, inconsonance of practices and even obscurities in the provisions. Thus in para 12 of its order in Mall Eximp (P) Ltd., the Tribunal refers to the proviso in Notification 14/2002 CE(NT) : dated 8.3.2002 to suffer from "excessive delegation". This indeed is an unfair and uncalled for observation. Further, the factum of stating in para 12 " in any case it does not permit a Chief Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and (ii) - that conveys the concept of "purpose & object" (or the reason and spirit) Thus the construction could combine both literal as well as a purposive approach. The words need to be read in their entire context and in their grammatical and ordinary sense. Given the said stipulations and approach in interpretation, it is noted that the word "appointment" and "posting" convey two distinct connotations. Thus while:- Appointment can be considered as an offer for a job, the (refer rule 3(1) of Central Excise Rules) Acceptance of which results in becoming a Central Excise Officer (refer Section 2b of the Central Excise Act) Whereas Posting is the location of an appointee. 52. Coming back to the provisions of Rule 3(1), it is observed that it is completely silent as far as location/posting of an appointee is concerned. However, (through) a different sub rule Rule 3(2) it does indicate the various stations where all are the possibilities for an appointee to be located. Therefore, reading into this rule, that the appointee (a Central Excise Officer) shall be located at the behest of the Board (alone) is a grave error of interpretational judgement and cannot be adopted, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in law to be notified each time, there is a change in rank and position of the Central Excise Officer and this is so, by virtue of the fact that the incumbent person is already a notified Central Excise Officer. It is also a pointer to the fact that Rule 3(1) & Rule 3(2) of Central Excise Rules ibid, operate in different contexts, are mutually exclusive and the two cannot be considered to be inter related or read in conjunction to arrive at their natural meaning. Also it is not required to read the two sub rules into one other to arrive at their meaning. 55. It will also be worthwhile to point out that the Hon'ble High Court of Bombay in the case of Commissioner of Central Excise Raigad V. Remi Fans Private Limited- 2015(320)ELT644 T had even gone to the extent of holding that if a particular Commissioner was holding the charge of one jurisdiction in a substantive capacity and the other by way of additional charge, both constituting a review committee, it would still be construed as a committee in terms of Section 35B. This is despite the fact that in actual terms it was only one single person according his approval for two separate sets of positions and the Commissioner was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2008(230)ELT-244-T, which was passed by the very bench which pronounced the judgement in Mall Eximp (P) Ltd., involving similar questions of law though in a different contextual framework. 58. It may be of interest to mention that post the amendment of 2005 in Section 35B of the Act, introducing a system of review by a committee comprising of two Commissioners / Chief Commissioners their valid empowerment (a question which also arose in the miscellaneous applications filed in the Mall Eximp (P) Ltd.), a series of orders were passed by the said bench of this Tribunal at Kolkata, holding incompetence of jurisdiction of the Chief Commissioner / Commissioners for not having been notified by the Board, for no publication of a gazette notification etc. Thus for example the cases of -Commissioner of Central Excise, Dibrugarh, Vs. Khushi Aromatics [2009 (236) ELT 465 T]. -La Opala RG Ltd., Vs. Commissioner of Central Excise, Ranchi- Order A-10-11/Kol/09. -Commissioner of Central Excise, Vs. Kothari Products (2009(237) ELT-332T). -Commissioner of Central Excise and Service Tax, Vs. Mahanadi Coalfields (2009(235) ELT-315T). -Commissioner Central Excise, Customs & Service Tax, BB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no illegality vis-a-vis the statutory provisions when it comes to the Chief Commissioner assigning additional charge of a jurisdiction to the Commissioner and in such discharge of the statutory functions thereto, by the incumbent / Commissioner. 62. The Hon'ble Gujarat High Court in the case of Commissioner of Central Excise and Customs, Surat-I Vs. Rupa Dyeing and Printing Pvt. Ltd.,-2014(301)ELT 334 (Guj.) adopted the law as propounded in the above referred case of Coromandel Fertilizer and if two found no illegality in Commissioner of Central Excise Surat-I, signing both for himself as well as Commissioner of Central Excise, Surat-II, the additional charge of which formation he was vested with by the Chief Commissioner. It held that such decision taken by a lone person was not invalid. This is to so point out that there is no legal infirmity in a Central Excise Officer (read Commissioner), holding additional charge of a formation at the behest of the orders of the Chief Commissioner (read not the Board), in discharging statutory responsibilities vested in such officer by way of the additional charge assigned. 63. However, contrary to the aforesaid decisions of the various ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Excise Officer. The Section 2(b) of the Act, 1944 (unamended) clearly meant an Officer of the Central Excise Department to be the Central Excise Officer and no further action or any formality was required to be completed or contemplated. Investing of the power of the Central Excise Officer was contemplated when "any person" (including an officer of the State Government) was given the power of the Central Excise Officer. The object is loud and clear. When the power is to be vested in any person, who may be an officer of the State Government or an officer of any other Department, power is to be necessarily invested by the Board in such an officer because without investing the power he cannot function as Central Excise Officer under the Act, 1944. 20. Rule 4 of the Rules, 1944 as quoted above contemplated appointment of such persons as it thinks fit by the Board to exercise all or any of the powers conferred by these Rules. It is relevant to note that Rule 4 of the Rules, 1944 did not contemplate appointment by a notification in the Gazette. 21. For the first time by 2002, Rules, Rule 2(f) and Rule 3(1), appointment of such officer by notification to be published in the Offici ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tral Excise), his appointment is to be made by way of notification after due publication in the Official Gazette. This is the plain meaning of Section 2(b) of the Act, read with Rule 2(f) of the 2002, Rules. 64.1. In the context of investment of power to a Central Excise Officer reference, may be had to their Lordships observations in Paras 24 & 25 of the order to set the entire issue at rest. "24. In case, Rule 3 of the 2002, Rules is interpreted to mean that the Board even if the Officer is Chief Commissioner of Central Excise or the Commissioner of Central Excise is to be invested with the power by the Board to work as Central Excise Officer, the said is wholly redundant and useless exercise. The Chief Commissioner, Central Excise is the highest officer of the department and the Chief Commissioner, Central Excise or Commissioner, Central Excise undoubtedly can exercise all the powers of the Central Excise Officers under the Act. If the argument of the petitioner's counsel is accepted then even when the Commissioner, Central Excise issues notice under Section 11A of the Act, 1944 there has to be notification in the Official Gazette of his appointment as Central Excise Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise., he is incapacitated to exercise any power entrusted to Central Excise Officer. The argument has to be rejected since by virtue of a person being a Commissioner of Central Excise, the power to function as a Central Excise Officer is already invested in him and no further investment is required or necessary. This makes it clear that the submission of the learned counsel for the petitioner that unless a notification under Rule 3(1) of the 2002, Rules investing power is issued, no person even though he is Commissioner of Central Excise can function as a Central Excise Officer is incorrect." 65. The issue of jurisdiction involved in the present matter is akin to the case of Raghunath International Ltd., Vs. UOI. The Hon'ble High Court, having held that the publication of notification was not meant to be in respect of existing Central Excise Officers, it is clear that the decision of this Tribunal in Mall Eximp (P) Ltd., was extra-legal and not good law. 66. The Hon'ble Apex Court in the case of Tata Consultancy Services Vs. State of Andhra Pradesh-2004 (178) ELT 22 S.C., laid down a series of cardinal principles of interpretation. The more relevant to the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o alter the meanings of the clear words used in an enactment and so, in effect, repeal statutory provisions by making them useless without holding them to be void." 69. The interpretation rendered by this Tribunal in Mall Eximp (P) Ltd., has the effect of extinguishing the rights of a Central Excise Officer (read Chief Commissioner / Commissioner) for no sustainable reasoning and plausible logic. The impugned judgment metaphorically is nothing short of what the Courts once said "see the skin and miss the soul." When the wordings in the statute are clear (and for argument even though the intention of the legislature may not be so), the court is not empowered to add or subtract words from / to the statute, to give it a meaning which the court feels would fit into the scheme of things and this is what the Hon'ble Supreme Court has so held in its judgement in the case of Shilpa Mittal Vs. State of NCT- AIR-2020 SC 405. Thus it is clear that the notional construct that the Tribunal, has enunciated in Mall Eximp (P) Ltd., is neither sanctioned legally nor its been the intention of the legislature. The Tribunal ought to have read the word "may" in the statute to imply to mean discret ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er and was the proper authority exercising statutory, administrative and functional jurisdiction over the Central Excise & Service Tax Commissionerate, Siliguri in his capacity as Commissioner of Central Excise & Service Tax, Siliguri having been duly assigned the said charge by the jurisdictional Chief Commissioner. The ratio of law in Mall Eximp (P) Ltd., case is respectfully disagreed with and therefore cannot be adopted in the present case. 74. In view of our discussions above and in response to the directions of the Hon'ble High Court of Sikkim, we hold that Sri CM Mehra, Commissioner of Central Excise & S. Tax, Siliguri, was duly empowered and not legally deprived of the said jurisdiction of Commissioner of Central Excise and Service Tax, Siliguri. 75. We, thus are of the view that Sri CM Mehra had therefore, validly adjudicated the matter in his capacity as Commissioner of Central Excise & Service Tax, Siliguri, and there is no legal force and substance in the plea of a challenge to his authority, over lack of jurisdiction as Commissioner of Siliguri Commissionerate. The said plea is therefore liable to be dismissed. In our opinion Sri CM Mehra, Commissioner Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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