9911796707
TMI Blog2019 (8) TMI 714X X X X Extracts X X X X X X X X Extracts X X X X ..... .3; (c) This Hon'ble Court be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate Writ, Order or direction, directing the Respondents : (i) to forthwith supply the documents as mentioned in Sr.Nos.59 to 63 to Annexure-A to the Show Cause Notice. (ii) to pass separate orders under the provisions of the Central Excise Act, 1944 and the Central Goods and Services Tax Act, 2017; (iii) not to implement and execute the impugned order dated 10.07.2019. (iv) not to initiate recovery action in terms of the impugned order dated 10.07.2019 (d) pending the hearing and final disposal of the Petition, this Hon'ble Court be pleased to direct the Respondents, by themselves, their servants and agents/officers/ subordinates to stay the operation Order-In-Original No.23/ADJ/JC-AKS/OA/2019-20 dated 10.07.2019 passed by the Joint Commissioner, GST & Excise; (e) for ad-interim relief in terms of prayer (c) above; (f) for costs of the Petition and orders thereon; and (g) for such further and other reliefs, as this Hon'ble Court may deem fit and proper in the nature and circumstances of the case." 2. We take notice of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon to show-cause as to why :- (i) the total tax amounting to Rs. 7,18,77,892/- (i.e. CGST @1.5% = 3,59,38,946/- SGST @1.5% = 3,59,38,946/-) payable on the supply of taxable goods by way of willful suppression of unaccounted manufacture and selling activity of articles of diamond studded gold jewellery falling under Chapter Heading 7113 as per Schedule No.V of GST Tariff contained in Notification No.1/2017-C.T (Rate) by adopting Chapters 1 to 98 of the Customs Tariff Act, 1975, attracting CGST @l.5% and SGST @1.5% ad-valorem, during the period from July-2017 to 11.01.2018 with an intention to evade the said Taxshold not be demanded and recovered in terms of the provisions of Section 74(1) of the Central Goods and Services Tax Act, 2017, read with the provisions of Section 6 of the Gujarat SGST Act, 2017, to recover the State Tax (i.e. SGST); (ii) the total tax amounting to Rs. 46,75,791/- (CGST @1.5% = 2337895.6 + SGST @1.5% 2337895.6) payable on the above referred seized goods totally valued at Rs. 15,58,59,711/-(Rs. 4,10,68,644/- as per order of seizure dated 12.01.2018 and Rs. 11,47,91,067/- las per order of seizure dated 14/15.03.2018), being unaccounted, should not be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ility and recovery of State Tax (i.e. SGST) amounting to Rs. 3,59,38,946/- (three crore fifty nine lakh thirty eight thousand nine hundred forty six rupees) against M/s Palak Designer Diamond Jewellery, Surat for the period from July-2017 to 11.01.2018 in terms of the provisions of Section 74(1) of the Central Goods and Services Tax Act, 2017 read with the provisions of Section 6 of Gujarat GST Act, 2017 to recover State Tax (i.e. SGST) from M/s Palak Designer Diamond Jewellery, Surat. (v) order to confiscate the seized goods totally valued at Rs. 15,58,59,711/- (Rs. 4,10,68,644/- as per Order of seizure dated 12.01.2018 and Rs. 11,47,91,067/- as per Order of seizure dated 14/15.03.2018) under the provisions of Section 130 (i, ii & iv) of the Central Goods and Services Tax Act, 2017. I hereby give option to redeem the said goods on payment of redemption fine of Rs. 15,11,83,920/- to M/s Palak Designer Diamond Jewellery, Surat in lieu of confiscation of the said seized goods. If M/s Palak exercise the option to pay redemption fine, the confiscation shall be lifted and they will account for such goods in their books of account and make sure that the applicable tax liability on suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ,030/- and State Tax (i.e. SGST) of Rs. 6,16,030/- paid vide DRC-03 dated 28/01/2019, the tax amount of Rs. 7,90,793/- as SGST paid vide DRC-O3 dated 30/01/2019 as per sec 74(8) of the Central Goods and Services Tax Act, 2017 and the Gujarat Goods and Services Tax Act, 2017 respectively against the show-cause notice. I also appropriate the seized cash of Rs. 13,09,920/- with interest which has been fixed deposited under CIF No.9008921206-0 in the Account No.37611264402 in the name of GST AND CENTRAL EXCISE COMMISSIONERATE in the SBI, Main branch, Chowk Bazaar, Surat, against the tax demand determined as above. In addition to the above, the amount of Rs. 1,84,808/- paid as penalty vide DRC-03 dated 28/01/2019 is also appropriated. Accordingly, balance amount of the tax demand and the penalty to be recovered by the proper officer. This order is passed without prejudice to any other action that may be taken against them or any other person under the Central Excise/Customs Law or any other law for the time being in force. This order is governed under Section 174 of CGST Act, 2017 and Sec. 142 of CGST Act, 2017." 5. The aforesaid order passed by the Joint Commissioner is a subject ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, instructions from paragraph 2 onwards are hereby issued to revise the existing monetary limits for adjudication and to allow greater flexibility in allocation of cases amongst adjudicating authorities. (i) Circular No.752/68/2003-CX, dated 1.10.2003 [2003 (157) E.L.T. (T30)] (ii) Circular No.806/3/2005-CX, dated 12.1.2005 [2005 (179) E.L.T. (T21)] (iii) Circular No.865/3/2008-CX, dated 19.2.2008 [2008 (223) E.L.T. (T3)] (iv) Circular No.922/12/2010-CX, dated 18.5.2010 [2010 (253) E.L.T. (T45)] (v) Circular No.957/18/2011-CX, dated 25.10.2011 [2011 (273) E.L.T. (T5)] (vi) Circular No.80/1/2005-S.T., dated 10.8.2005 [2006 (1) S.T.R. (C66)] (vii) Circular No.99/2/2008-S.T., dated 11.3.2008 [2008 (10) S.T.R. (C3)] (viii) Circular No.130/12/2010-S.T., dated 20.9.2010 [2010 (20) S.T.R. (C9)] 2. Adjudication of confiscation and penalty by the Central Excise Officers is provided in Section 33 of the Central Excise Act, 1944. Central Excise Officers have the power under Section 11A to adjudicate show cause notices demanding duty short paid or not paid and erroneously refunded. Similar powers exist in Service Tax under Section 73 and Section 83A of the Finance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew that even an Additional Commissioner or an Assistant Commissioner or a Deputy Commissioner or any other officer of the Central Excise or any person invested by the Board with the powers of the Central Excise Officer would be a Central Excise Officer. The Supreme Court took notice of the fact that, although the Legislature has made such change, yet the Board issued a circular prescribing the monetary limits. 10. The question before the Supreme Court was : Can the Board override the provisions of the Act by issuing directions in the manner in which it was done and if the Board could not do so, then what would be the effect of such circulars ? 11. The Supreme Court, ultimately, held as under : "6. It must be mentioned that the only point agitated is that the Superintendent had no jurisdiction to issue the show-cause notices and that the Deputy Commissioner had no jurisdiction to adjudicate. This is because in an earlier round it has already been held by CEGAT, by its order dated 17th October, 2000 that the Appellants are not entitled to the benefit of the Notifications. Against that Order Civil Appeal No.4050 of 2001 is pending before this Court. 7. In order to consider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the excisable goods removed during the month to which the said return relates, is to be filed by a manufacturer or producer or a licensee of a warehouse, as the case may be, the date on which such return is so filed; (B) where no monthly return as aforesaid is filed, the last date on which such return is to be filed under the said rules; (C) in any other case, the date on which the duty is to be paid under this Act or the rules made thereunder; (b) in a case where duty of excise is provisionally assessed under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof; (c) in the case of excisable goods on which duty of excise has been erroneously refunded, the date of such refund." Thus, under Section 11A, as it then stood, whenever it was alleged that there was fraud, collusion, willful misstatement or suppression of facts, the show-cause-notices could only be issued by the Collector. As the Act itself laid down a requirement, it has been held, in a number of authorities, that a show-cause notice issued and/or adjudication done by an officer below the rank of a Collector would be invalid as such an officer had no juri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 11A empowers any Central Excise Officer to issue the notice and determine the duty due. (iii) Likewise, the "proper officer" i.e. Jurisdictional Central Excise Officer can issue notice and adjudicate the demands under Rule 9(2)/Rule 57-I/Rule 57U of Central Excise Rules, 1944. (iv) In order to bring about uniformity and objectivity the Board issued instructions defining powers of adjudication of specified Central Excise Officers taking 'duty involved' as the criterion. 3. Those show cause notices where adjudication orders are not passed upto 28th February, 1997, will be adjudicated as provided hereinafter :- (A) All cases involving fraud, collusion, any willful misstatement, suppression of facts, or contravention of Central Excise Act/Rules made thereunder with intent to evade payment of duty and/or where extended period has been invoked in show cause notices, (including Modvat cases, Rule 9(2) cases of this type) will be adjudicated by :- (Amt. of duty involved) Commissioners - Without limit Addl. Commissioners - Upto Rs. 10 lakhs (B) In respect of cases which do not fall under the category (A) above, will be adjudicated by :- (Amt. of dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... adjudications except the Circular No. 13/93-C.X., are hereby rescinded. 8. An immediate exercise should be undertaken thereafter to take the stock of the pendencies as on 1st March and transfer of the relevant files and records to respective adjudicating authorities by 15th March, 1997 under proper receipt. This re-cast figures should be reflected suitably in the Monthly Technical Report of March, 1997 to be submitted in April, 1997. 9. Receipt of this Circular may please be acknowledged. 10. The trade and field formations may be suitably informed." By clauses 3(A) and 5.1 of this Circular, the Board is directing that in cases of fraud, collusion, willful misstatement or suppression of facts the notice must be issued and adjudication must take place by the Commissioner without limit and by the Deputy Commissioner up to a limit of Rs. 10,00,000/-. Thereafter the Board by another Circular dated 13th August, 1997 reiterated the above position. 11. The Appellants place strong reliance upon these two Circulars and submit that by virtue of these Circulars the Superintendent had no jurisdiction to issue the show-causenotices and that the Deputy Commissioner had no jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rious classes of Officers. These administrative directions cannot take away jurisdiction vested in a Central Excise Officer under the Act. At the highest all that can be said is Central Excise Officers, as a matter of propriety, must follow the directions and only deal with the work which has been allotted to them by virtue of these Circulars. But if an Officer still issues a notice or adjudicates contrary to the Circulars it would not be a ground for holding that he had no jurisdiction to issue the show cause notice or to set aside the adjudication. 14. The Tribunal has in its order dated 25th June, 2003, inter alia, held as follows:- ".....Further, at the relevant time as per the provisions of Section 11A(1) proper officer which includes Superintendent is competent to issue the show cause notice. Board's Circular is only the administrative direction which does not cause any prejudice to the Appellants....." In our view this is absolutely correct. We, therefore, see no infirmity in the Judgment dated 25th June, 2003. We hold that the Superintendent had jurisdiction to issue showcause- notice and the Deputy Commissioner had jurisdiction to adjudicate. 15. As we have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er of central tax who is subordinate to him, the following entry is hereby removed from the Table on page number 2 of Circular No. 3/3/2017- GST dated 5th July, 2017:- Sl. No. Designation of the officer Functions under Section of the Central Goods and Services Tax Act, 2017 or the rules made thereunder (1) (2) (3) 3. Deputy or Assistant Commissioner of Central Tax vi. Sub-sections (1), (2), (3), (5), (6), (7), (9) and (10) of Section 74 4. In other words, all officers up to the rank of Additional/Joint Commissioner of Central Tax are assigned as the proper officer for issuance of show cause notices and orders under sub- sections (1), (2), (3), (5), (6), (7), (9) and (10) of sections 73 and 74 of the CGST Act. Further, they are so assigned under the Integrated Goods and Services Tax Act, 2017 (hereinafter referred to as the "IGST Act") as well, as per section 3 read with section 20 of the said Act. 5. Whereas, for optimal distribution of work relating to the issuance of show cause notices and orders under sections 73 and 74 of the CGST Act and also under the IGST Act, monetary limits for different levels of officers of central tax need to be prescribed. Therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase there are more than one noticees mentioned in the show cause notice having their principal places of business falling in multiple Commissionerates, the show cause notice shall be adjudicated by the competent central tax officer in whose jurisdiction, the principal place of business of the noticee from whom the highest demand of central tax and/or integrated tax (including cess) has been made falls. 7. Notwithstanding anything contained in para 6 above, a show cause notice issued by DGGSTI in which the principal places of business of the noticees fall in multiple Commissionerates and where the central tax and/or integrated tax (including cess) involved is more than Rs. 5 crores shall be adjudicated by an officer of the rank of Additional Director/Additional Commissioner (as assigned by the Board), who shall not be on the strength of DGGSTI and working there at the time of adjudication. Cases of similar nature may also be assigned to such an officer. 8. In case show cause notices have been issued on similar issues to a noticee(s) and made answerable to different levels of adjudicating authorities within a Commissionerate, such show cause notices should be adjudicated by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
