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TMI Blog2019 (11) TMI 1144X X X X Extracts X X X X X X X X Extracts X X X X ..... l gazette clearly reveals that there was an inadvertent mistake in having issued the original notification dated 19.06.2017 and the subsequent Annexure P-2 Notification dated 01.07.2017, wrongly mentioning it as having issued by the 'Board', instead of stating as issued by the Government , and hence, it was corrected accordingly. Since this was definitely to cut the roots of the case filed by the Petitioners, this Court found it appropriate to cause the matter to be listed for consideration again. Accordingly, it was listed on 22.10.2019 and the parties were heard again. The course and conduct of the parties on both the sides in not bringing the relevant 'corrigendum notification' dated 29.07.2019 to the notice of this Court was deprecated and an opportunity was given to make appropriate submissions, after calling for the remarks/explanation from both the sides. Taking note of the fact that there was nothing intentional on the part of the learned counsel for the Petitioners, the learned Assistant Solicitor General or the learned counsel representing the 2nd Respondent/Board in relation to the omission in brining the 'corrigendum notification' dated 29.07 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Agrawal Director, and Shareholder of M/s Mangal Commercial Pvt. Ltd., Smt. Suman Agrawal W/o Sri Pankaj Agrawal Versus Union of India Through The Secretary, Central Board of Indirect Taxes And Customs (Formerly Known As Central Board of Excise And Customs), The Commissioner Central Board of Indirect Taxes And Customs (Formerly Known As Central Board of Excise And Customs), The Goods And Service Tax Council (GST Council ), Directorate General of Goods And Service Tax Intelligence, Senior Intelligence Officer Directorate General of Goods and Service Tax Intelligence , Superintendent (Prev.) O/o The Principal Commissioner, Central Goods, And Service Tax And Central Excise M/s Salasar Tradeco Pvt. Ltd., Sri Pradeep Agrawal, Sri Pramod Agarawal Versus Union of India Through The Secretary, Central Board of Indirect Taxes and Customs (Formerly Known as Central Board of Excise And Customs), The Commissioner Central Board of Indirect Taxes and Customs (Formerly Known As Central Board of Excise and Customs), The Goods and Service Tax Council (GST Council), Directorate General of Goods and Service Tax Intelligence, Senior Intelligence Officer, Directorate General of Goods And Serv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the powers of 'Proper Officer' with reference to Annexure P-1 and P-2; by virtue of which the Petitioners are being harassed and they have to appear before different Officers placed in different states, which is totally alien to the scheme of the statute. The Petitioners are required to have registration only in the 'place of supply' as envisaged under Section 22 of the CGST Act and hence, it can only be in Chhattisgarh, contend the Petitioners. It is also pointed out that the scheme of the CGST Act is 'One Assessee, One Subject Matter, One Officer' and not 'One Assessee, One Subject Matter and Different Officers'; which otherwise would lead to chaos and is contrary to the law declared by the Apex Court in Commissioner of Customs v. Syed Ali and Another, (2011) 3 SCC 537. 3. Writ Petition (T) No. 77 of 2019 is stated as the lead case and the parties and proceedings are referred to as given therein, except where it is separately referred to. 4. We have heard Shri Shri Kartik Kurmy, Shri Dharmesh Shrivastava and Shri Rajesh Sharma, learned counsel representing the respective Petitioners, Shri B. Gopa Kumar, learned Assistant Solicit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Writ Petition (Cr) No. 419 of 2019 and connected cases. The prayers raised in the said writ petition were as given below: a) to show cause as to how and under what authority of law, the Petitioner was assaulted during the course of search seizure operation dated 02.11.2018, carried out by the raiding team of Respondent No. 3 at the business premises of the Petitioner. b) directing upon the Respondents to carry out the investigation in accordance with law by strictly adhering to the provisions as contained in Central Goods and Service Tax Act, 2017 read with the provisions of Code of Criminal Procedure, 1973. c) holding and declaring that the provisions of Central Goods Service Tax Act, 2017 does not authorise the officers of the Respondent No. 3 to call the assessees/witnesses/purported to be accused, for giving statement under Section 70 of the Act in any enquiry/investigation and arrest them on purported allegation of evasion of tax or contravention of the provisions of the Act. AND Pending final hearing of this application, the Respondents be restrained from taking any nature of coercive action as against the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer shall act fairly, demonstrating such fairness in his action. After finalisation of the writ petitions as above, a fresh summons was issued on 29.03.2019 (Annexure P-11) asking the Petitioners to appear in person on 10.04.2019. This time, instead of complying with the said instruction or causing the same to be challenged before the High Court at Jharkhand, the Petitioners approached this Court by filing the above writ petitions challenging the proceedings as above, with reference to the absence of power, jurisdiction and competence of the 6th Respondent; simultaneously challenging Annexure P-1 Circular and Annexure P-2 Notification, to act as 'Proper Officer' as mentioned above. 8. A reply has been filed on behalf of the Respondents-Department through the Assistant Solicitor General of India, pointing out that the Government of India has introduced a new levy of Goods and Service Tax w.e.f 01.07.2017 with a vision and mission of One Nation, One Tax, One Market , implemented as part of new Indirect Tax Policy, in public interest, by subsuming various earlier indirect levies such as Central Excise Duty, Service Tax, VAT etc; expecting that goods and services ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n response to the Annexure P-11 summons. After evading the process, they have surfaced before this Court challenging the circular/notification/summons. It is asserted that the officers of the Directorate General of Goods Service Tax Intelligence were appointed as 'Proper Officers' as per Annexure P-2 Notification dated 01.07.2017 and the said 'Proper Officers' were assigned the functions vide Annexure P-1 circular dated 05.07.2017. It is further stated that Annexure P-2 Notification has been validly published in the official gazette as defined under Section 2(80) of the CGST Act and that the assignment of functions to the 'Proper Officer under section 2(91), as per the Circular, does not envisage publication in the official gazette. 10. With regard to the challenge raised by the Petitioners against Annexure P-2 notification issued under Section 3, read with Section 5 of the CGST Act, it is stated as issued only after approval of the Union Finance Minister (obtained on 17.06.2017) as contained in the relevant file and it was published in the official gazette. As such, the appointment of the Officers of the Directorate General of Goods Service Tax I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 2(53) of the CGST Act, and 'notification' is as defined under Section 2(80) of the CGST Act; which means, a notification published in the official gazette. Reference is made to Section 3(39) of the General Clauses Act, 1897 as well. 13. The question whether publication in the gazette is mandatory or directory, when such a stipulation is contained in the statute, had come up for consideration before the Apex Court and as per the ruling reported in ITC Bhadrachalam Paper Boards v. Mandal Revenue Officer, A.P. {(1996) 6 SCC 634}, it has been held that, when the mode of publication is specified, it is a mandatory requirement. The learned counsel further submits that when the manner to act is provided, it shall be done only in that manner and no other manner, as held in A.K. Roy and Another v. State of Punjab and Others reported in (1986) 4 SCC 326. Since no gazette notification has been issued appointing 'Proper Officers' and since Annexure P-2 Notification is issued only by the 2nd Respondent Board as defined under Section 2(16) of the CGST Act and not by the 'Government' as defined under Section 2(53) of the CGST Act, it is not a valid no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appointed by the 'Commissioner in the Board', by notification in the gazette and further that the notification under Section 3 shall be by the Government, and nobody else. 16. In support of various contentions raised, the learned counsel for the Petitioners sought to place reliance on: Novva Ads v. Secretary, Department of Municipal Administration and Water Supply another, (2008) 8 SCC 42, to the effect that subordinate legislation cannot go beyond the primary legislation and if there is a conflict, primary legislation shall prevail. Additional District Magistrate (Rev.) Delhi Admn. v. Siri Ram, (2000) 5 SCC 451, to the effect that Rules cannot go against the provisions in the Act; Assam Co. Ltd. Another v. State of Assam Others, (2001) 4 SCC 202, to the effect that Rules cannot override the provisions in the Act, asserting that the delegatee cannot jump over the delegator; Union of India Others v. S. Srinivasan, (2012) 7 SCC 683, to the effect that, if the Rules supplant any provisions or if there is no power, it will be ultra vires; State of T.N. Another v. P. Krishnamurthy Others, (2006) 4 SCC 517, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs and authority to those persons who are already identified and notified as 'Central Tax Officers' as per Annexure P-2 Notification dated 01.07.2017. This being so, the dictum laid down in Syed Ali (supra) is not at all applicable. It is further pointed out that the plea as to the 'multiplicity of proceedings' is having no relevance to the case in hand, insofar as it is not connected with any 'assessment', but in respect of investigation into the mischief / misdeed stated as committed at different places. It is also pointed out that no summons have been issued in respect of the same transaction by two different authorities/Proper Officers, and if at all any such instance is involved, it is always open for the Petitioners to have it pointed out before the 'second officer' who has initiated the subsequent proceeding in respect of the same cause of action/transaction, if it is pending before any other officer. This being the position, there is no violation of Article 14 or any other provision of the Constitution of India, submits the learned counsel. 18. Shri B. Gopa Kumar, the learned Assistant Solicitor General makes submissions in tune wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the course of arguments, the challenge is mainly on three counts. Firstly, that the power of appointment under Section 3 of the CGST Act is vested exclusively upon the Government and not on the 2nd Respondent/Board and as such, Annexure P- 2 Notification is bad. Secondly, that the Notification (Annexure P-2) issued in exercise of the powers under Section 3, read with Section 5 of the CGST Act and Section 3 of the IGST Act, admittedly has been issued by the 2nd Respondent/Board and not by the Government, who alone is the competent authority to issue such appointment order. Thirdly, since no notification has been issued by the Government, but for Annexure P-2 issued by the Board, it is not a valid notification to be acted upon, and as such, Annexure P-1 order dated 05.07.2017 assigning the functions of 'Proper Officer' as specified therein, in exercise of power under Section 2(91) of the CGST Act, read with Section 20 of the IGST Act and subject to Section 5(2) of the CGST Act, assigning such powers by the 2nd Respondent/Board, is not correct or sustainable. 21. After the final hearing held on 16.10.2019, the matter was taken up reserving judgment. Later, in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emarks/explanation from both the sides. When the matter came up for further consideration on 06.11.2019, the learned counsel appearing for the Petitioners expressed sincere regrets as to the serious lapses; and so was done by the learned Assistant Solicitor General, as well as by the learned counsel representing the 2nd Respondent/Board. It was pointed out by the learned Assistant Solicitor General that the Principal Commissioner, on realizing the mistake, has filed an affidavit dated 25.10.2019 tendering 'unconditional apology' and confirmed that the corrigendum notification dated 29.07.2017governs the field. Similar submission was made by the learned counsel representing the 2nd Respondent/Board as well and expressed regrets on the omission in pointing out the correct position when the matter was heard on the previous occasion. 23. Taking note of the fact that there was nothing intentional on the part of the learned counsel for the Petitioners, the learned Assistant Solicitor General or the learned counsel representing the 2nd Respondent/Board in relation to the omission in brining the 'corrigendum notification' dated 29.07.2017 to the notice of the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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