9911796707
TMI Blog2008 (9) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... ty - we waive the requirement of predeposit, set aside the impugned Order - appeal allowed - decided in favor of appellant. X X X X Extracts X X X X X X X X Extracts X X X X ..... authority of law. In so far as the Central Excise Duty is concerned, the law referred to in the Constitution of India is the Central Excise Act, 1944 and the Rules made thereunder, which have the force of law. As held by the Hon'ble Supreme Court in the case of Competent Authority v. Baranagar Factory - (2005) 13 SCC 477, where the law requires an act to be done in a particular manner, the same has to be done in that manner alone. Since the Central Excise Act and Rules require a Commissioner of Central Excise to be appointed by the Board by a notification published in the Official Gazette, the same was required to be done in appointing Shri C.M. Mehra in respect of Kolkata-I Commissionerate having jurisdiction over the appellant assessee. Since Shri Mehra has not been so appointed, he had no jurisdiction whatsoever, to pass the impugned Order demanding the duty and imposing the penalty. The Order passed by him requires to be set aside being an illegal Order passed without having jurisdiction. 4. Heard Shri J.A. Khan, learned S.D.R. for the Department. Shri Khan produces a copy of the Charge Report dated 2-11-07 signed by Shri A.K. Pawar, Commissioner, Central Excise, Kolkata- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld by the Tribunal in the case of Mall Eximp (cited supra). Secondly, he states that the question of a Revenue Official lacking jurisdiction to pass an Order demanding Central Excise duty and imposing penalty is a question of law and as held by the Hon'ble Supreme Court, such a question of law relating to jurisdiction can be raised at any stage of the proceeding including the appellate stage. In this connection, he cites the decision in the case of Moly & Another v. State of Kerala - (2004) 4 SCC 584 in which it has been held that plea relating to lack of jurisdiction is a pure question of law which can be raised in the appellate court even if not raised before the courts below. He also cites the decision of the Tribunal in the case of Nandi Metal Rolling Mills v. CCE - 1992 (60) E.L.T. 322 (Tribunal) in which the decision of the Hon'ble Supreme Court in the case of Kiran Singh & Others v. Chaman Paswan - 1954 SCA P. 725 was cited, wherein the Hon'ble Supreme Court has held that it is a fundamental principle, well-established that a decree passed by the Court without jurisdiction is a nullity and its invalidity could be set up whenever and wherever it is sought to be enforced or r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Mall Eximp (supra) as well as in the case of M/s. Hindustan Coco-cola Beverages (supra). We are of the view that no public official can exercise the statutory powers without being vested with jurisdiction under the relevant tax statute in the manner prescribed under the law. It is inconceivable that an official can perform duties under a tax statute without having lawful authority or jurisdiction. As is argued by Dr. Chakraborty on behalf of the Appellants, the constitutional mandate makes it very clear that no tax can be levied and collected except by authority of law. The law, in this case, Section 2(b) of the Central Excise Act, 1944 read with Rule 3 of the Central Excise Rules, 2002 requires that the Central Board of Excise and Customs should appoint Commissioners of Central Excise by notification in the Official Gazette and specify their jurisdiction. Admittedly, Shri C.M. Mehra who has passed the impugned Order has not been so appointed as Commissioner of Central Excise, Kolkata-I Commissionerate by the Central Board of Excise and Customs by a Notification published in the Official Gazette. The Central Excise law lays down the scheme of appointment of officials and the mann ..... X X X X Extracts X X X X X X X X Extracts X X X X
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