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TMI Blog2020 (1) TMI 896X X X X Extracts X X X X X X X X Extracts X X X X ..... e order dated June 06, 2017, the power to pass an order for Special Audit under Section 14AA of the Central Excise Act, 1944 was taken away from the Commissioner, Central Excise, Kolkata II and the said power was vested with the Commissioner, Audit I, Central Excise, Kolkata. It is elementary that a mandamus does not command any obligation to be performed neither authorises any authority to exercise power de hors the statute. When the learned Single Judge had remanded the matter to the Commissioner for fresh consideration, such exercise should have been carried out by such Commissioner who at that point of time was vested with such power under Section 14AA of the Central Excise Act, 1944. It is true that the assessee did not rais ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner- appellant company (hereinafter referred to as the assessee ). As far back as in the year 2005, the Commissioner, Central Excise, Kolkata II passed an order dated December 15, 2005, against the assessee for special audit under Section 14AA of the Central Excise Act, 1944. The assesse challenged the said order before this court by filing a writ petition being W.P. No.2269 of 2005. The said order for special audit was set aside by a learned Single Judge by an order dated December 06, 2016, directing, inter alia, as follows: In the present case although the impugned order is a reasoned one, the same was passed without hearing the petitioners. The Commissioner has passed the impugned order. No materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so find that since this is a case of Special Audit, the matter may be dealt with by the Commissioner, Audit I, Central Excise, Kolkata and hence I direct the case may be transferred to that Commissionerate to initiate further action at their end as stated above. The assessee again challenged the said order dated June 06, 2017 by way of the present writ petition. The learned Single Judge, by the order impugned in this appeal, held that the Commissioner, Central Excise, Kolkata II had applied his mind to the records, considered the facts presented by the assessee, crossed the legal threshold required for formation of a belief and also met the requirement of natural justice as directed to be observed by the order dated December ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proceedings before the Commissioner, Central Excise, Kolkata II without raising any issue as to his jurisdiction and, having suffered an order, the assessee could not contend that the said Commissioner had no jurisdiction to pass the said order. It is the case of the Revenue that since the learned Judge directed the Commissioner, Central Excise, Kolkata II, to pass the reasoned order, the said Commissioner duly complied with the order. The order dated December 06, 2016, as quoted above, passed in the earlier round of writ petition, cannot be construed to mean that the learned Single Judge directed the Commissioner, Central Excise, Kolkata II to pass the reasoned order, though such Commissioner may have had no authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Excise Act, 1944. The order passed by the said Commissioner was without authority. On the basis of concession of the parties, the Commissioner could not have assumed the said jurisdiction. The said order dated June 06, 2017 directing special audit cannot, therefore, be sustained. Accordingly, the order impugned is set aside. The relevant audit Commissioner, empowered under Section 14AA of the Central Excise Act, 1944, after promulgation of the Central Goods and Services Tax Act, 2017, is directed to pass a reasoned order after giving due opportunity of hearing to the assessee. It is quite alarming to note that the issue of special audit of the assessee for the relevant period has been dragged for about fifteen years. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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