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TMI Blog2021 (11) TMI 900X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of Service Tax- I depicting several zones in Bangalore and Principal Commissioner of Service Tax-II depicting several zones in Bangalore. This notification comes into effect from 15-10-2014. After the 2nd respondent issuing summons and recording statements, the matter is referred to the Principal Additional Director General, Central Excise Intelligence of Service Tax. This is in terms of Notification issued on 15.10.2014 pursuant to which, the Principal Additional General, Central Excise Intelligence, Principal Additional Director General, Service Tax or Principal Additional Director General, Audit shall exercise the power of the Principal Commissioner. The five officers who are indicated are empowered to exercise the powers of the Principal Commissioner. Likewise, Senior Intelligence Officer, Central Excise Intelligence, Superintendent, Service Tax or Superintendent Audit could exercise the power of the Superintendent. The justification of the revenue is in terms of the said notification, the summons that were issued by the Intelligence Officer is now transferred to Principal Commissioner who has also issued a detailed show cause notice which is impugned in the writ petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certiorari or any other writ or direction to quash the notification No.22/2014-15 dated 16-09-2014 enclosed as Annexure-B issued by the respondent No.4 to the extent of appointment of officers of DGCEI as 'Central Excise Officers' having all India jurisdiction and declare it as illegal and ultra vires being violative of Articles 14, 19, 265, 300A of he Constitution; (d) Writ or direction in the nature of a writ of certiorari or any other writ or direction to quash the show cause notice No.79/2016-17 dated 13-12-2016 enclosed to Annexure-N issued by the respondent No.5 as being arbitrary and oppressive being violative of Articles 14, 19, 265 and 300A of the Constitution; (e) Writ or direction in the nature of a writ of certiorari or any other writ or direction to quash the show cause notice No.79/2016-17 dated 13-12-2016 enclosed as Annexure-N issued by the respondent No.5 as being issued mechanically, with premeditated mind and lacking in judicial discipline as being contrary to settled decisions; And (f) Grant such other reliefs as this Hon'ble High Court may think fit including the cost of this writ petition. 2. Brief facts leading to the filing of the writ petition, as b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate General of Service Tax. This notification come into effect from 15.10.2014, which was in supersession of the earlier notifications dated 28.01.1998 and 11.03.2004, which had till then held the field. 5. In 28.07.2016, investigations were initiated by a Senior Intelligence Officer, Director General of Central Excise Investigations, Belagavi, against the petitioner for the following payment of service tax on the reimbursement of expenses such as salaries to staff and associates and other additional expenditure. The DGCEI, Belagavi Unit, issued summons to the petitioner seeking the following information: (1) Form 26AS for the Financial year 2011-12 to 2015-16. (2) Balance Sheets (P&L) IT returns and audit report u/s 44AB for 2011-12 to 2015-16. (3) Duly attested copies of random bills raised for each financial year. (4) Work order copies/agreements. (5) To tender evidence. After seeking the aforesaid information, the petitioner was directed to appear before the Senior Intelligence Officer of the DGCEI on 28.07.2016. The 2nd respondent/officer recorded the statement of the petitioner and requested submission of all the documents while referring to the summons and direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. 9. On the other hand, the learned counsel Sri.K.V.Aravind, appearing for the revenue would vehemently argue and oppose the submissions contending that what has been done by issuance of summons is only to record the statement of the petitioner and transfer the case to the jurisdictional Commissionerate. The proceeding is not conducted by the 2nd respondent/Senior Intelligence Officer but only by the competent authority in the Commissionerate of Service Tax. The very document that the petitioner would rely as a testimony for the fact that the proceedings are now instituted only by the competent authority and not by the 2nd respondent as is contended. The petitioner has now called in question notices and a writ calling in question a notice would not be maintainable as he has to reply to the same unless it is without jurisdiction. The learned counsel submits that the proceedings instituted are within the jurisdiction and who is conducting is also jurisdictional Commissionerate even according to the petitioner. 10. I have given my anxious consideration to the respective submissions and the only issue that falls for my consideration is as to, whether proceedings instituted are witho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4), rule 3 of the Central Excise Rules, 2002 and Rule 3 of the Service Tax Rules, 1994 and in supersession of the Notification No.46/98- SERVICE TAX, dated the 28th January 1998, published vide number G.S.R. 59(E), dated the 28th January, 1998 and No.7/2004-C.E., dated the 11th March 2004, published vide number G.S.R. 187(E), dated the 11th March, 2004, the Central Board of Excise and Customs hereby appoint the officers in the Directorate General of Audit, Directorate General of Central Excise Intelligence and Directorate General of Service Tax specified in column (2) of the Table below as Central Excise Officers and invests them with all the powers under Chapter V of the Finance Act, 1994 (32 of 1994) and the rules made thereunder, throughout the territory of India, as are exercisable by the Central Excise Officers of the corresponding rank as specified in column (3) of the said Table, namely:- TABLE Sl.No. Officers Officers whose powers are to exercised 1. Principal Director General, Central Excise Intelligence or Principal Director General, Service Tax. Principal Chief Commissioner 2. Director General, Audit, Chief Commissioner 3. Principal Additional Director Gener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce in relation to any such officer exercising such power. In terms of Rule 3, the jurisdiction of the Principal Commissioner of Central Excise and Chief Commissioner of Service Tax are depicted by issuance of a notification. 13. The jurisdiction of the Chief Commissioner of Central Excise, Bangalore has come to the Principal Commissioner of Tax-1, Bangalore and Chief Commissioner of Tax-II, Bangalore. Likewise, territorial jurisdiction of Principal Commissioners of Service Tax is conferred on the Principal Commissioner of Service Tax- I depicting several zones in Bangalore and Principal Commissioner of Service Tax-II depicting several zones in Bangalore. This notification comes into effect from 15-10-2014. After the 2nd respondent issuing summons and recording statements, the matter is referred to the Principal Additional Director General, Central Excise Intelligence of Service Tax. This is in terms of Notification issued on 15.10.2014 pursuant to which, the Principal Additional General, Central Excise Intelligence, Principal Additional Director General, Service Tax or Principal Additional Director General, Audit shall exercise the power of the Principal Commissioner. 14. Therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impugned notification, it becomes unmistakably clear that a Principal Commissioner of Central Excise is also a Central Excise Officer and the power of the Principal Commissioner can be exercised by the aforesaid 5 officers one of whom is the Principal Additional Director General, Central Excise Intelligence. 17. Therefore, the contention that depiction of authorities under the impugned notification is contrary to the Act is unacceptable as a conjoint reading of Section 2(b), Rule 3 and Notification dated 15.10.2014, all would lead to an unmistakable conclusion that the Officer before whom the petitioner is now directed to appear is an Officer who has jurisdiction to enquire into what is alleged against the petitioner as the office of the Principal Additional Director General, Directorate General of Central Excise Intelligence is the one who has issued the show cause notice dated 13.12.2016. What the Senior Intelligence Officer has done is issuing notice/summons to the petitioner and recording his statement and the entire matter is transferred to the proper officer, as aforesaid. It is he who has now issued show cause notice for initiation and continuation of actual proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8(4) of the Act for recovery of duties allegedly not levied or paid when the goods have been cleared for import by a Deputy Commissioner of Customs who decided that the goods are exempted. It is necessary that the answer must flow from the power conferred by the statute i.e. under Section 28(4) of the Act. This Section empowers the recovery of duty not paid, part paid or erroneously refunded by reason of collusion or any wilful mis-statement or suppression of facts and confers the power of recovery on "the proper officer". The obvious intention is to confer the power to recover such duties not on any proper officer but only on "the proper officer". This Court in Consolidated Coffee Ltd. v. Coffee Board, Bangalore has held:- "14. …Secondly, and more importantly, the user of the definite article 'the' before the word 'agreement' is, in our view, very significant. Parliament has not said 'an agreement' or 'any agreement' for or in relation to such export and in the context the expression 'the agreement' would refer to that agreement which is implicit in the sale occasioning the export." 14. Where the statute confers the same power to perform an act on different officers, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e bills of entry are to be filed, the entire function of assessment, clearance, etc. is carried out by the appraising officers functioning under the Commissioner of Customs (Imports). 17. Before adverting to the rival submissions, it would be expedient to survey the relevant provisions of the Act. Section 28 of the Act, which is relevant for our purpose, provides for issue of notice for payment of duty that has not been paid, or has been short-levied or erroneously refunded, and provides that: "28. Notice for payment of duties, interest, etc. - (1) When any duty has not been levied or has been short-levied or erroneously refunded, or when any interest payable has not been paid, part paid or erroneously refunded, the proper officer may,- (a) in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, within one year; (b) in any other case, within six months, from the relevant date, serve notice on the person chargeable with the duty or interest which has not been levied or charged or which has been so short-levied or part paid or to whom the refund has erroneously been made, re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 2(34) of the Act otiose inasmuch as the test contemplated under Section 2(34) of the Act is that of specific conferment of such functions." 24. We, therefore, hold that the entire proceeding in the present case initiated by the Additional Director General of the DRI by issuing show cause notices in all the matters before us are invalid without any authority of law and liable to be set-aside and the ensuing demands are also set-aside. (Emphasis supplied) This judgment again, as stated hereinabove, is inapplicable as the case was concerning confiscation of goods. In that context, the Apex Court holds that it was not instituted by the proper officer. Paragraphs afore extracted would clearly divulge as to what was the issue before the Apex Court. Therefore, the said judgment also would not lend any support to the contention of the learned counsel appearing for the petitioner. The show cause notice is within the jurisdiction and not without, as contended. Therefore, the petitioner has to answer to the show cause notice and further proceedings to take place in accordance with law. 22. For the aforesaid reasons, I do not find any merit to entertain the writ petition and is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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