2021 (2) TMI 1299 - HC - GST

Jurisdiction - power to issue SCN - Issuance of SCN by Additional Director General of GST Intelligence, Coimbatore Zonal Unit, Coimbatore, proposing to levy central excise duty with interest and penalty - applicability of Doctrine of implied powers - HELD THAT - The authority of the first respondent to issue the show cause notice cannot really be questioned. This is because, Notification No.14/2017-Central Tax, dated 01.07.2017 issued by the Central Board of Excise and Customs under Sections 3 and 5 of the Central Goods and Services Tax Act, 2017 gives power to Additional Director General/first respondent to issue show cause notice. The contest is more around the competence of the second respondent to adjudicate the matter - Thus, this office order enclosed at Page No.70 of the respondents' typed set answers the question as to why the petitioner has been asked to show cause before ADG (Adj), Mumbai. Whether the Principal Director General, DGGI, Hqrs, New Delhi is competent to issue such an officer order? - HELD THAT - When the legislation specifically permits the institution of the assessment proceedings even after coming into force of the Central Goods and Services Act, 2017 in respect of the liability incurred under the repealed Act, the only inference can be that the earlier statutory regime remains intact for the purpose of the proceeding against the petitioner for the aforementioned liability. If Section 174(2) of the Central Goods and Services Act, 2017 enables institution of assessment proceedings under the Repealed Act, then this Court has to necessarily conclude that it gives power to the authorities to do everything for carrying out the aforesaid purpose. The doctrine of implied powers has to be applied to the case on hand. A combined reading of the various notifications and office orders referred to above would show that the first respondent has not acted on his own. That the demand of duty from the petitioner is above Rs.5.00 crores is apparent. The Central Board of Excise and Customs has authorised the Director General of CEI to issue general orders for assigning cases and for issuing show cause notice. Duty involving more than Rs.5 Crores shall be adjudicated by the Additional Director General(Adjudication). In the Circular No.994/01/2015-CX, dated 10.02.2015, it is seen that the Additional Director General(Adjudication), Mumbai, is the adjudicating authority for all matters involving the Central Excise Duty/Service Tax of more than Rs.5 Crores. Thus it is necessarily held that the second respondent is having the territorial jurisdiction to go into the issue on hand. In view of the foregoing discussion, it is held that the impugned show cause notice cannot be rejected as lacking in jurisdiction - there are no merits in the petition. Petition dismissed.

Summary

Issues:
Jurisdiction of the second respondent to adjudicate the matter; Competence of the Principal Director General to issue the office order; Validity of the show cause notice under the Central Goods and Services Tax Act, 2017.

Jurisdiction of the Second Respondent:
The first respondent's authority to issue the show cause notice is established by Notification No.14/2017-Central Tax. The second respondent's competence to adjudicate the matter is supported by Office Order No.574/CE/41/2020/INV14352, assigning cases involving Central Excise duty amount exceeding Rs.5.00 crores to the Additional Director General (Adj), Mumbai. The circulars issued by the Central Board of Excise and Customs provide the necessary framework for jurisdiction allocation, ensuring the second respondent's authority to handle the issue.

Competence of the Principal Director General:
The competence of the Principal Director General to issue the office order is derived from Circulars CIR No.994/01/2015-CX and CIR No.1000/07/2015-CX issued by the Central Board of Excise and Customs. These circulars empower the Director General to assign show cause notices involving duty exceeding Rs.5 crore to a specific Additional Director General (Adjudication). The legal framework provided by these circulars supports the issuance of the office order, thereby establishing the competence of the Principal Director General.

Validity of the Show Cause Notice:
The petitioner argues that the circulars issued under the Central Excise Act, 1944 ceased to exist upon the repeal of the Act by the Central Goods and Services Tax Act, 2017. However, Section 174(e) of the CGST Act, 2017 explicitly allows for the continuation of legal proceedings, investigations, and assessments related to duties under the repealed Act. The doctrine of implied powers is invoked to ensure the effectiveness of the statutory provisions, enabling the authorities to proceed with assessment proceedings even after the repeal. The court's analysis aligns with the decision in Vianaar Homes case, emphasizing the continuity of legal actions under the repealed Act despite the new legislation.

Conclusion:
The judgment dismisses the writ petition challenging the show cause notice's jurisdiction, affirming the second respondent's authority to adjudicate the matter. The court upholds the validity of the notice under the CGST Act, 2017, emphasizing the continuity of legal proceedings related to duties under the repealed Act. The decision underscores the application of implied powers to ensure the effectiveness of statutory provisions and the authority of the concerned officials to address liabilities incurred under the previous legal framework.