2018 (3) TMI 350 - HC - Central Excise

Validity of assessment order - main activity, according to the petitioner, is the supply and installation of goods purchased from the vendor by integrating such goods to the need of such customer - Held that - The power of the Commissioner would depend upon the factual situation. In that sense, without adverting to the factual situation, the Commissioner could not have exercised the power. That means the Commissioner had erred in exercising the jurisdiction to pass such order - this Court can invoke the power under Article 226 of the Constitution to set right such jurisdictional error committed in the decision making process. Therefore, the impugned order is set aside leaving it for reconsideration - appeal allowed by way of remand.

Summary

Issues:
Assessment order under Central Excise Act challenged by petitioner for alleged manufacture of marketable products without proper examination of goods. Maintainability of petition questioned by Department citing alternate remedy. Commissioner's jurisdictional error in passing the order without considering factual situation.

Analysis:
The petitioner procures IT products, customizes them for customers, and claims to have paid service tax for their services. The Commissioner assessed the petitioner under the Central Excise Act, demanding a substantial amount based on two show cause notices. The petitioner challenges this assessment order, arguing that the Commissioner erred in not examining each activity to determine if it constitutes manufacturing goods.

The Department raised a maintainability objection, contending that the petitioner should seek an alternate remedy before approaching the court. The petitioner's counsel argued that the Commissioner made a jurisdictional error by not considering the factual situation, leading to an order based solely on legal principles without factual correlation. The court noted that the Commissioner must examine each activity to establish if it qualifies as manufacturing goods before imposing excise duty.

The petitioner's main activity is supplying and installing goods purchased from vendors, customized to meet customer needs. As the Commissioner failed to focus on this crucial aspect, the court decided to remand the matter for reconsideration. The court clarified that it was not delving into the merits of the case but rectifying the jurisdictional error in the decision-making process.

The court emphasized that the Commissioner's power hinges on the factual situation, and without proper consideration of facts, the order was flawed. By setting aside the impugned order, the court directed the petitioner to present details of their activities to the Commissioner for a fresh decision, ensuring a personal hearing. The court concluded by stating that the matter should be reconsidered without expressing any opinion on the case's merits, thereby disposing of the writ petition without costs.