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TMI Blog1990 (5) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... tional ground of appeal. All these misc. applications were heard and allowed. Thereafter, the appeals were heard only on this preliminary point of jurisdiction. As a common issue arises in all these appeals, they were heard together and they are being disposed of by this common order. 6. The above fact is not in dispute. So, it is an admitted fact that the show cause notices in all these matters were issued by the authority described above. So, arguments were confined to this aspect only. So, it is not necessary to recite facts of each appeal because they are not relevant for the present purpose. 7. We have heard Shri V. Sridharan, Id. advocate for the appellants and Sh. L.C. Chakraborti, Id. J.D.R. for the respondent. 8. Ld. Advocate, Sh. Sridharan made following submissions : Directorate of Anti Evasion (CE)(DAE) was established as an independent Directorate thereby making it independent of the Directorate General of Revenue Intelligence (DGRI) from 1-4-1986. Earlier, it was working as a wing of DGRI. So, by Notification No. 215/86, dated 27-3-1986, officers of DAE were appointed as C.E. officers and were invested with all the powers of such officers, but before that they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was simply an administrative label. Even though, the show cause notices were signed by the officer concerned as Assistant Director, Directorate of Anti Evasion, there was no such separate Directorate at the relevant time and so he should be presumed to have signed as Assistant Director, DRI , and as such, he was appointed as Assistant Collector (CE) and invested with powers of Assistant Collector (CE). Sh. Chakraborti also contended that as the appellants had not raised this point before the lower authorities, this cannot be agitated at this level and appeals cannot be decided on this ground, because appeals have been preferred against impugned orders which were passed by the Collector (Appeals) who was properly authorised. He cited the following decisions (i) M/s. Pannalal Binjraj and Others v. Union of India and Others - (S) A.I.R. 1957 S.C. 397 (V. 44 C 62 May) (ii) Remington Rand of India Ltd. v. Thiru R. Jambulingam - A.I.R. 1974 (S.C.) 1915 (iii) Ram Kumar Sitaram v. Certificate Officer, 24 Parganas, Alipore and Another - 1963 (49) I.T.R. 797 (Cal.) (iv) Gokaraju Gangaraju, etc. v. State of Andhra Pradesh - 1981 (3) S.C.R. 474 (v) Multanmal Harakmal v. State of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Income-tax Officers to whom their cases were transferred, they were certainly not entitled to invoke the jurisdiction of this Court under Art. 32. It is well settled that such conduct of the petitioners would disentitle them to any relief at the hands of this Court. 13. So, the Hon ble Supreme Court, in the above case, refused to entertain the ground of jurisdiction in special circumstances of that case. 2. 1975 (2) S.C.R. 17 - Remington Rand of India Ltd. v. Thiru R. Jambulingam. In this case the respondent was an employee of the appellant. He was charge sheeted and after domestic enquiry, being held, was dismissed. The appellant applied to the Industrial Tribunal for approval of the dismissal order under provisions of Section 33(2)(b) of the Industrial Disputes Act. The Tribunal approved the dismissal order. Meanwhile, the respondent had appealed to the Commissioner under Section 41(2) of the Tamil Nadu Shops and Establishments Act and the Commissioner allowed the appeal holding that the punishment of dismissal was disproportionate to the gravity of the offence proved. In appeal to the Hon ble Supreme Court, the appellant contended that the respondent having claimed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade the assessment under Section 14(2) (of the Income-tax Act) after disallowing certain exemption claims by the assessee. It has been held by the Hon ble High Court, in para 7,as under: The sole purpose of the notice is to put a party to a pending proceeding on notice thereof and to furnish him with an opportunity to present himself and take part in the proceeding to protect his interest. Once that purpose is served by the party appearing before a particular authority, there is no principle of law or justice which requires that any defect or irregularity in the notice should be examined, or permits the party who has appeared to rely upon the defects or irregularities for preventing the authority from proceeding to deal with the matter in accordance with law. It may be noted that here the question was of procedural irregularity, but there was no question of inherit jurisdiction of the authority which issued the show cause notice. Ram Kumar Sitaram v. Certificate Officer, 24 Parganas, Alipore and Another - 1963 (49) I.T.R. 797. In this case the assessees invited a particular Income-tax Officer to make assessment and thereafter they raised an objection regarding jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsequent proceedings." c) Shri Kanwal Pal Singh and Others v. Collector of Customs, Kanpur - 1988 (35) E.L.T. 725 (Tri.) - A fresh plea can always be taken before the Tribunal provided that jurisdiction to entertain new issue not raised by the appellant before the lower authorities and the claim is backed by sufficient material on record. d) Commissioner of Income-tax, Bombay v. Belarpur Allied Industries Ltd. - 1983 (141) ITR 404 - In this case, the issue was whether the ITAT (Tribunal) was right in allowing the assessee to raise the additional ground of invalidity of notices at the Tribunal level and Hon ble Bombay High Court has held as under : That the Tribunal was justified in allowing the assessee to raise the additional ground of appeal. 15. So, in light of above discussion, we are satisfied that the point of jurisdiction goes to the very roots of the subject-matter and that that issue can be looked into and decided at this level. 16. Now, to appreciate the rival contentions it is necessary to properly peruse the relevant notifications, which we reproduce hereunder : (1) Notification No. 157/69 - In exercise of the powers conferred by clause (b) of Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on No. 157169-C. Ex., dated 7-6-1969] 2. Notification No. 274/79-C.E., dated 10-11-1979 - In exercise of the powers conferred by clause (b) of Section 2 of the Central Excises and Salt Act, 1944 (1 of 1944) and Rule 4 of the Central Excise Rules, 1944, and in supersession of the notification of the Central Board of Excise and Customs No. 157/69-Central Excises, dated 7-6-1969, the Central Board of Excise and Customs hereby appoints officers of the Directorate of Revenue Intelligence specified in column (2) of the Table below as Central Excise Officers and invests them with all the powers exercisable by an officer of the Central Excise of the ranks specified in the corresponding entry in column (3) of the said Table, such powers being the powers of a Central Excise Officer conferred under the said Act. TABLE S.No. Officers of the Directorate of Revenue Intelligence Rank of the Officers of Central Excise 1. 2. 3. 1. Director Collector 2. Joint Director Collector 3. Deputy Director Deputy Collector 4. Assistant Director Assistant Collector 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rectorate-General of Revenue Intelligence shall be substituted. Explanatory Note : On redesignation of the post of Directorate of Revenue Intelligence to the Directorate-General of Revenue Intelligence, the Notification No. 191/84-C.E., dated 6-8-1984 has accordingly been amended. (6) APPOINTMENT OF OFFICERS 215/86-C.E., dated 27-3-1986 Since with effect from 1-4-1986, the officers of the Directorate of Anti Evasion (Central Excise) will be independent of the Directorate General of Revenue Intelligence, this notification has been issued investing the Officers of Directorate of Anti-Evasion (Central Excise) with the powers of appropriate Central Excise Officers. In exercise of the powers conferred by clause (b) of Section 2 the Central Excises and Salt Act, 1944 (1 of 1944), read with Rule 4 of the Central Excise Rules, 1944, and in supersession of the notification of the Central Board of Excise and Customs No. 191/84-Central Excises, dated the 6th August, 1984, the Central Board of Excise and Customs hereby appoints the officers of the Directorate of Anti-Evasion (Central Excise) specified in column (2) of the Table below as Central Excise Officers and invests them wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise Officers and invested with powers exercisable by an officer of the Central Excise of the rank specified therein. Ld. J.D.R. argued that the Directorate of Anti-Evasion was functioning as an administrative wing of DRI at a relevant time and so all officers of DAE should also be understood to have been appointed as such officers and invested with such powers. But, then, it appears that the C.B.E.C. itself, did not consider it to be so because the CBEC issued Notification No.191/84 thereby investing Director of Anti-Evasion with the powers of a Collector of Central Excise. It may also be noted that therein designation of the said officer has been stated as under : Director, Anti-Evasion (Customs Central Excise) in the Directorate of Revenue Intelligence, New Delhi. So, the C.B.E.C. was aware that the said Officer, namely, Director, Anti-Evasion was working in the Directorate of Revenue Intelligence. So, if, as contended by the Id. J.D.R., the said officer should be presumed to have been invested with powers of a Collector of Central Excise, then issuance of this notification should not have been necessary. Moreover, this was not the only notification issued in this conne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -Evasion (CE) was not necessary and that it should be ignored. But this argument is not correct because if he was appointed as an officer in Directorate of Anti-Evasion, then in light of the above discussion, he was not appointed as a Central Excise Officer and so he could not have exercised such powers invested in a Central Excise Officer. The Id. Advocate has produced copies of several notifications whereby various officers have been appointed either in the Directorate of A.E. or DRI and thereby they have been appointed in that particular Directorate only. So, it can be seen from these appointments that the Directorates of A.E. and DRI were treated as separate entities and officers were appointed separately in both the Directorates and they were appointed in specific Directorate only. Otherwise, the officer concerned could have been appointed as an officer, in D.A.E./D.R.I. In light of the above discussion, we are of the view that the show cause notices in all the above appeals signed by the Assistant Director (AE) were without jurisdiction and so were invalid. As show cause notices were invalid, the adjudication proceedings following thereon were also rendered invalid. So, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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