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TMI Blog2023 (9) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... ms of Section 37A of the Central Excise Act, 1944 read with Rule 3(1) 3(2) of the Central Excise Rules, 2002, in favour of the Chief Commissioner, by the Central Government empowering him to appoint Sri C.M. Mehra to the charge of Commissioner of Central Excise Service Tax, Siliguri. Hence, the impugned adjudication by Sri C.M. Mehra suffered from lack of jurisdiction. Having specified a jurisdiction which is not disputed and having identified individuals (including Sri CM Mehra) as Central Excise Officers, it is not so mandated that the Board alone can post the individual (Central Excise Officers) to a given charge (jurisdiction) and it cannot be done by any subordinate officer in the absence of delegation of power. For the reason, any interpretation restricting the scope of this power, its free flow and to state as its vesting only in the Board, is nowhere enshrined in law. The Larger Bench of the Tribunal in CCE, New Delhi Vs. Avis Electronics Pvt. Ltd., [ 2000 (2) TMI 122 - CEGAT, NEW DELHI] had held that in understanding the provisions of the rules, the Tribunal was not to supplement or add words to the Rule. While it could be argued that the decision rendered in Mall Eximp (P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction to adjudicate the matter . The Registrar directed that the matter alongwith the case records be placed before the Hon ble President for his kind consideration and constitution of the Larger Bench to decide the impugned question of law. X X X X Extracts X X X X X X X X Extracts X X X X ..... ppeal on the issue of jurisdiction as it is an administrative order. It is his submission that any appeal against the executive order is not maintainable before this Tribunal as held by this Tribunal in the case of Kisan Sahkari Chinni Mills Ltd. Vs. Commissioner of Central Excise, Meerut I reported in 2009 (236) ELT 717 (Tri.-Del.). Therefore, he prayed that the issue of jurisdiction cannot be decided by this Tribunal. On merits, he submits that as it was an internal arrangement, therefore Shri C.M.Mehra was having jurisdiction in hand. 4. Heard the rival submissions of the two sides and given due consideration made by both the sides. 5. The matter has come up before us upon the direction of the Hon'ble High Court vide Order dated 25.08.2022 wherein the Hon'ble High Court of Sikkim has observed and directed as under : "From the records we also notice that subsequently the respondent, M/s. Perfect Technologies, had filed an application before the learned Customs, Excise and Service Tax Appellate Tribunal, East Regional Bench, Kolkata, seeking inclusion of additional grounds in the appeal, which inter alia included the following ground:- "5. The applicant fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h is pending before this Court. As such, while we keep the instant Tax Appeal No. 01 of 2019 pending for further consideration, we dispose of the cross-objection filed by the respondent, M/s. Perfect Technologies, with a direction upon the learned Customs, Excise and Service Tax Appellate Tribunal, East Regional Bench, Kolkata, to decide on this issue after giving adequate opportunity of hearing to both parties " 6. As we have heard this matter upon the directions of the Hon'ble High Court of Sikkim, to decide the issue whether Shri C.M.Mehra, who, at the material point of time, was the Commissioner of Central Excise & Service Tax, Siliguri, was having jurisdiction to pass the impugned order or not therefore, the argument, advanced by the Learned Authorized Representative for the Revenue, that this Tribunal has no jurisdiction to decide the issue of jurisdiction of Shri C.M. Mehra, Commissioner of Central Excise & Service Tax, Siliguri, to pass the impugned order, is not acceptable to us as we are duty bound to follow the directions of the Hon'ble High Court and subservient to the directions imparted. 7. The issue therefore, remains as to whether Shri C.M. Mehra was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioners are not being made recently through notifications but merely by issue of office orders contrary to the statutory provisions. He further adds that lack of jurisdiction cannot be cured by consent or waiver as has been held by the Hon'ble Supreme Court in Sushil Kumar Mehta Vs. Govind Ram Bohra-(1990) 1 SCC 193. 11. We find that the Board has issued Notification Nos. 14/2002- CE(NT) : dated 08.03.2002 specifying jurisdictions of Chief Commissioners, Commissioners and Commissioners (Appeals). Under the same, the jurisdiction of Commissioner, Haldia is specified as District of Midnapore, part of Howrah District and Andaman and Nicobar Islands whereas the jurisdiction of Commissioner, Siliguri is specified as Districts of Darjeeling, Jalpaiguri, Cooch Behar, North Dinajpur, South Dinajpur, Malda and State of Sikkim. Thus the two jurisdictions are mutually exclusive and separate. We also find that there is no notification by the Board posting Shri Mehra as Commissioner of Central Excise, Siliguri. 12. The proviso to the above-cited Notification No. 14/2002- CE(NT) : reads as under:- "Provided that a Chief Commissioner of Central Excise may, within his jurisdictio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... " 15. We note that these instructions are only stating what is obvious. Unless a Commissioner is appointed by the Board to hold a specific charge as provided under the statutory provisions, he cannot exercise any of the statutory powers under the Central Excise Law. He can at the most, exercise administrative and financial powers. The Board has not authority to delegate its power to appoint a Commissioner and specify his jurisdiction. The Central Government has not delegated Board's Authority to the Chief Commissioner in this regard. Hence, in the absence of such delegated authority, the Chief Commissioner cannot assign statutory work of a separate jurisdiction without a valid delegation of Board's power in this regard by the Central Government through a notification in the Official Gazette as required under Section 37A of the Act. 16. As such, we hold that Shir C.M. Mehra cannot act as a Commissioner of Central Excise, Siliguri under the Central Excise statute not being appointed to and vested with such jurisdiction by the Bard and hence, be has not locus standi to file the present Miscellaneous Applications in an appeal pertaining to the Siliguri jurisdiction.&qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd. It is however, no denying that it is the exclusive prerogative of the Board to appoint an individual as a Central Excise Officer. This is so also, observed in day to day stream of functioning and officers of the Department are actually appointed by the Board albeit in varying capacities/positions. Thus for example an Additional Commissioner upon promotion consequent to such an order issued by the Board is appointed (deemed to be appointed) as the Commissioner/ Commissioner (Appeals). STATUTORY PROVISIONS 13. The definition of Central Excise Officer in the act as it stands today signifies various administrative/statutory positions, in law. The same is reproduced herein below:- Central Excise Act, 1944 SECTION 2. Definitions [(b) "Central Excise Officer" means the [Principal Chief Commissioner of Central Excise, Chief Commissioner of Central Excise, Principal Commissioner of Central Excise], Commissioner of Central Excise, Commissioner of Central Excise (Appeals), Additional Commissioner of Central Excise, [Joint Commissioner of Central Excise] [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] or any other officer of the Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssioner of Central Excise and Service Tax, Siliguri, pursuant to such assignment of charge by the jurisdictional Chief Commissioner, was statutorily not vested with powers to adjudicate the matter as there was no delegation in terms of Section 37A of the Central Excise Act, 1944 read with Rule 3(1) & 3(2) of the Central Excise Rules, 2002, in favour of the Chief Commissioner, by the Central Government empowering him to appoint Sri C.M. Mehra to the charge of Commissioner of Central Excise & Service Tax, Siliguri. Hence, the impugned adjudication by Sri C.M. Mehra suffered from lack of jurisdiction. 15. This Tribunal having not ruled on this plea, the appellants in their appeal before the Hon'ble High Court of Sikkim, Gangtok raised the issue for its specific consideration. The Honorable High Court have thus directed this Tribunal to give a specific finding on the said question raised by M/s. Perfect Technologies, by way of an additional ground in appeal before the Tribunal. 16. Lack of empowered jurisdiction of the Adjudicating Authority to adjudicate a case is fundamental in the discharge of statutory functions and strikes at the very root of the matter. This question is the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d recorded in para 8 above. It is on the strength of this Order of the Tribunal that, even in the present matter on an earlier occasion at the time of hearing the stay petition the Tribunal had imputed that Shri Mehra lacked jurisdiction to act as Commissioner, Central Excise & Service Tax, Siliguri, under the Central Excise statute, not having been vested with such jurisdiction by the Board. It may be pertinent at this stage, to point out for purpose of reference & records that while in Mall Eximp (P) Ltd., the said orders of the Tribunal were issued in the context of determination of the locus standi of Sri Mehra to file certain Miscellaneous Applications before the Tribunal, in terms of the provisions of Section 35B(2) of the act ibid, while in the case of Perfect Technologies, it is so ordered in connection with an adjudication order passed in the case of the appellants, by Sri C.M. Mehra in terms of the provisions of Section 33 of the Act ibid. 18. It is therefore imperative to analyse the said issue in the light of the statutory provisions and judicial rulings, the rules of interpretation and the long standing customary and operational practices. In the case of Mall Eximp (P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its Order in the case of Mall Eximp (P) Ltd. dealt with the pleadings of the two sides, which have been reproduced at Para 8 above. 20. Thus, in the case of Mall Eximp (P) Ltd. this Tribunal based on the analysis undertaken and for reasons specified in Para 11 to 15 of its order, came to the conclusion that Shri C.M. Mehra, in his capacity as Commissioner of Central Excise, Siliguri had not been appointed and vested with such jurisdiction by the Board and as such had no locus standi to file the miscellaneous application in an appeal pertaining to the jurisdiction of Central Excise Commissionerate, Siliguri. 21. Since the present appeal is a Service Tax appeal, it is appropriate to also place on record, the pari materia provisions of the Service Tax statute for sake of a ready comparison. Thus Rule 3 of Service Tax Rules, 1944 as under may also be gone through:- Rule 3. Appointment of officers The Central Board of Excise and Customs may appoint such Central Excise officers as it thinks fit for exercising the powers under Chapter V of the Act within such local limits as it may assign to them as also specify the taxable service in relation to which any such Central Excise office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aning without the aid of one another. Thus, they are meant to be read in isolation and there is no warrant to consider them as a part of collective whole. There is no manifest reason and objective, to club and interlink the three or two sub-rules Rule 3(1) and 3(2) to arrive at their natural meaning. (ii). The purpose of vesting in the Board, the powers to appoint Central Excise Officers, is precisely for the reason of: (a) Exercise of centralized control and (b) The diverse array of officers/individuals that are/ can be appointed as Central Excise Officers. 25. In terms of the definition of a Central Excise Officer in Section 2(b) of the Act, ibid, the Central Excise Officers are identifiable in various grades/ levels and ranges of hierarchy. This appointment is not only restricted to and for the officers of the department (CBIC/CBEC) but could extend well over to the officers of the government both central or the state government. Notification No. 30/2007 CE(NT) : dated 30.07.2007 is a case in point where in terms of the provisions of Rule 3(1) of the Central Excise Rules 2002, the Protocol Officer in the MEA/ or the Joint Secretary (Protocol) in the Govt. of Maharastra,/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he law and the spirit thereof, but also to its intendment-made clear from the language of the statute deployed. 27. No such meaning, actually flows from the legal provisions on the basis of which this Tribunal in Mall Eximp (P) Ltd., case arrived at the conclusion that an officer upon instructions/authorization/empowerment from the Chief Commissioner (read Shri C.M. Mehra) cannot be vested with the substantive charge of a duly notified geographical Central Excise jurisdiction (read Commissioner of Central Excise & Service Tax, Siliguri), for (a) having not been deputed by the Board per se and. (b) absence of delegation of Board's authority to the Chief Commissioner. 28. We are afraid such narrow, constricted, uncalled for, extra-legal reading into the statutory provisions, rather than doing justice is actually injurious to the free flowing, natural meaning of the legal provisions, its intendment and the language deployed. It would not be inappropriate to state that the statutory responsibility casted upon the Board is: a) To identify and notify an individual as a Central Excise Officer-Rule 3(1) (words used are "such person") and b) Specify territorial juris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial jurisdiction is at best an administrative decision, rendered in discharge of the functions and responsibilities of the Board. 31. It cannot be stated for the foregoing reasons, that for discharge of an administrative function to be executed by a subordinate authority (read Chief Commissioner) within their assigned territorial limit, Section 37A comes into play particularly so when such action is in respect of such Central Excise Officers, as made available to the said subordinate authority-Chief Commissioner and posted under his administrative control. This is more so, as explained earlier, the statutory responsibility of the Board, in the given context is two fold (a) Appointment as a Central Excise Officer and (b) Specifying the jurisdiction of the Chief Commissioner/Commissioner/Commissioner (Appeals). Questions, as to the manner of doing so, though relevant are however distinct from this two fold responsibility. 32. To supplement the above contention, it may be pointed out that subordinate officers like AC/DC/JC/ADC who are also assigned specific statutory powers including that of adjudication, are invariably not assigned to a precise specific territorial charge by the Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i) is required to be done by way of issuance of a notification and (ii) it is only the Board that can issue such a notification, as the authority of the Board is not delegated to the Chief Commissioner, lest all officers otherwise posted will be statutorily handicapped. 35. It is this reasoning and logic that has led this Tribunal to arrive at its findings in the case of Mall Eximp (P) Ltd. Thus the jurisdictional controlling authorities like the Chief Commissioner (also read Commissioner) are by implication not vested with the authority to assign the additional charge of a jurisdiction, in so far as it relates to discharge of statutory functions, to Central Excise Officers (also read Commissioner) working within their administrative control. From the foregoing in pursuance of this ruling of the Hon'ble Tribunal, unless the Commissioner is appointed by the Board to hold a specific charge, the officer cannot exercise any statutory power in respect of the jurisdiction, assigned to him by the Chief Commissioner. 36. A close reading of the statutory provisions however reveals that Rule 3(1) of the said Rules, merely confers on the Board, the power to appoint any person as it th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assigned higher roles or responsibilities or, (ii) Subsequent promotions and elevations (read appointments) to higher positions are not published in the official gazette and all such communication to the world at large are through means other than the publication in the official gazette. (iii) Rule 3(1) nowhere prohibits/restricts a senior supervisory officer of Central Excise (read Chief Commissioner / Commissioner) from assigning additional responsibilities, full or in part, under the statute to any of the subordinate officer with in his territorial pool, made available to the said Central Excise supervisory officer by the Board as befitting the status of such Central Excise Officer. 37. Given the context, it would be most inept to read into law anything but what is obviously said and stated. No presumption lies, to conclude that, what does not flow out of the legal provisions expressly worded, when discharge of such functions is either administrative in nature or simply discretionary. 38. The word "may" in Rule3(1) cannot be deemed to be read as "shall". Subsequent posting, promotion, transfer, assignment of a charge etc be it of a regular nature, or by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e officer gets elevated to a higher position in the official hierarchy, in the official gazette is not resorted to, there is no such publication by way of gazette notification, simply because the person moving up the ladder is, remains and continues to be a Central Excise Officer. All that is a consequence of his elevation is the fact of movement of a step ahead or a rung up in the ladder of official hierarchy and in other words can be described as ladder of a "Central Excise Officer". 40. Overarching public interest are duly served by, and not dependent upon the mode of, dissemination of information about a particular Central Excise officer acting in a different/elevated capacity or position. Such intimation to the public at large and the dissemination of the fact to others concerned could be and is generally done, by way of placing such information in public domain by way of a publication on the website / issue of trade notices/direct communication or addressing by way of office orders to concerned agencies/bodies/individuals and others concerned. All these and several such other modes of communication are time tested, well-established, or of proven efficacy and above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterpret the law. The said meaning as in Mall Eximp (P) Ltd. is neither intended nor so stated in the statute, nor does it flow from the scheme of things in the Act. The two sub-rules as mentioned earlier being standalone and capable of their independent existence, operate in independent territories and cater to different charter of functions and circumstances, cater to distinct schemes of action and meant to meet widely varying objectives. The two provisions are capable of deriving their true, real and complete meaning, independent of each other and need no mutual assistance for their meaningful interpretation. It would not be short of a sacrilege to even suggest that the assignment of additional charge to an officer by the supervisory Chief Commissioner / Commissioner could imply to mean as altering the territorial jurisdiction as determined and notified by the Board under Sub-rule 3 (2) ibid. The assigning of additional territorial jurisdiction to a Central Excise Officer (read Commissioner) under the administrative control of a senior supervisory officer, (read Chief Commissioner) by such supervisory officer (read Chief Commissioner) is no more than donning an extra hat, in add ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions and the notification issued thereunder would clearly demonstrate, since the territorial jurisdiction is so specified in terms of the notification, there is no leeway in such scenarios. Principles of Interpretation & the Mall Eximp (P) Ltd., 44. It is a settled proposition in law that the Courts are not supposed, least of all empowered, to of their own accord add or subtract words into what is so stated in law, particularly so, when the statutory provisions or a stipulated prescription are capable of deriving their natural meaning from a plain reading of the provisions. If the provision of the statute is clear the Court or any judicial/quasi judicial body is required to interpret them as it is regardless of the meaning that flows thereby. It is the duty of the Court that in construing statutory provisions, the intention of the legislature need be given effect to and the intent to be gathered from the language employed in the statute. In view of the discussions in earlier paras, it is felt that the Tribunal in Mall Eximp (P) Ltd., failed to grasp the legislative meaning and arrived at a proposition leading to absurdity. The Hon'ble Supreme Court in the case of UOI Vs. Dha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and regulations. The manual should not be quoted as an authority in any correspondence outside the office. Principal Director of Audit will be grateful if omission or inaccuracies noticed in this manual and any suggestion for improvements are brought to the notice for issue of correction slips wherever necessary. Rita Mitra Principal Director of Audit Jaipur October, 2007 To set the context of the instruction the same is quoted herein. 1.6. Powers of Principal Director of Audit and the Director 1.6.1. The Principal Director of Audit is authorized to exercise all power of Head of Departments under FRs and SRs, GFR etc. (Authority: C&AG's letter No. 1383-Admn II/G-7A-C- Ar.G. (Admn) 55 dated 29.09.55). 1.6.2. The distribution of Administrative work between Principal Director of Audit, Director (Admn) and Sr. Audit Officer/Audit Officer (Admn) is as given in Annexure-I. 1.6.3. The itemized list of powers exercisable by the Principal Director of Audit is given in the M.S.O. In terms of the Rule 3 of the delegation of Finance Power Rules 1958 read with SR2 (10), the Director (Admn) has been declared as the Head of the Office for the purpose of Finance Rules of the Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thorization for filing of appeal had held that the interpretation of the provision should be to subserve and not subvert the implementation of the purpose of the enactment. Apologetically and sadly, the interpretation rendered by this Hon'ble Tribunal in Mall Eximp (P) Ltd., appears to be nothing less than subverting the due process of law and blocking the dispensation of justice. The interpretation of the statutory provision is to be so rendered as to advance the true intention and purpose of law-actual or imputed. The Constitutional Bench recently in the case of Commissioner of Excise (Import) Mumbai Vs. Dilip Kumar & Co. - 2018(361)ELT-577 SChad reiterated the cardinal principle of interpretation i.e. when the words in the statute are plain, clear unambiguous and only one meaning can be inferred, Courts are bound to give effect to the said meaning. As stated earlier and at the cost of repetition, it is added that the language of the provisions in the statute as considered in Mall Eximp (P) Ltd., is plain and unambiguous but the Hon'ble Tribunal appears to have erred therein in juxtaposing the provisions of Rule 3(1) & Rule 3(2) of the Central Excise Rules, to arrive at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edy in law for such lapses." That is to point out that the bench was fully aware and conscious of the consequences of its interpretation and findings. 50. A long standing convention cannot by any means be unsettled at a drop of a hat and at a particular interpretational whim of the adjudicating authority. From the case records, it is observed that the Tribunal in Mall Eximp (P) Ltd., had rejected the recall of the order on the plea of lack of locus standi of the Commissioner. It is an established practice, and too well known that grant of additional charge is an act of administrative exigency meant to subserve the statutory processes, the interest of taxpayers and for smooth discharge of day to day working, in the absence of a regular incumbent. In short the status of the authority on additional charge is in no way less good, than a regular incumbent and is also not made out to be so in law. The practice ensures that the affairs of the Commissionerate are not impeded and is therefore as much valid and legal. 51. While interpreting a statutory provision, the first and foremost duty of the court is to ascertain the intention of the legislature, moreso when in doubt. A statut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the intent of law. On the contrary interpretational tools seek to make each and every provision to be given their fullest meaning and operate in the widest amplitude possible. 54. In support of the aforesaid discussions, at this juncture, it would be of value to add the following:- (i) The Hon'ble High Court of Chhattisgarh, Bilaspur in the case of MSP, Steel and power Ltd., Vs. Union of India,- 2013(288)ELT334 Chhatisgarh, found no qualms and illegality in the proposition and the fact that the officers of the department (read Commissioners / Central Excise Officers) were merely promoted to higher echelons and no territorial jurisdiction was conferred thereupon, which had been separately notified by way of publication in the official gazette. The Hon'ble High Court held that there was no need to issue such GOs by way of notification in official gazette each time the promotions were conferred to the officers. The Hon'ble High Court categorically held that the provisions of the rules did not mandate that promotion orders were required to be issued by way of notification. 54.1. This lends credence to the discussions and our findings that it is not incumbent in law to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns in Section 86(1)(1A)(i) and (ii), which empowers the Board to constitute the Committee in the name of post and holding such post or who may subsequently be appointed on such post automatically becomes the Member of such Committee and it is not the appointment as persona disgrata. If the interpretation of the rule is made according to the view expressed by the learned counsel for the respondent, then it will be putting restriction on the specific statutory provision of the Act and Rules and under the Act, nowhere it is provided that such power, can be vested in a person and cannot be vested upon a post. Contrary to the above, in fact, the provision specifically provides for vesting of power upon a person by virtue of holding of the post of Chief Commissioner or Commissioner. Therefore, there was no need for publication of the notification by the Board in the name of the persons who were holding the post of Chief Commissioners". and stated that appointment to the post was in perpetual succession of the officers holding the post. In fact, the Hon'ble High Court in the case overruled the Tribunal's decision in the case of CCE, Kol-III Vs. Naffar Chandra Jute Mills Ltd. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the application for stay by directing "any action taken in the meantime shall, however abide by the result of this appeal", thus in the result having stayed the orders of the Tribunal till the outcome of the appeal. 60. In view of the aforesaid the law as propounded by the Tribunal in such matters referred above (including Mall Eximp (P) Ltd.), some of which cases may not have been agitated further, may not be a good law any more. 61. In the case of Coromandel Fertilizer Ltd., -2009(237)ELT 453 H.C., the Hon'ble Bombay High Court while finding nothing wrong in the appeal filed by the Commissioner of Central Excise, Belapur who held additional charge of the Raigad, Central Excise Commissionerate (as both charges together constituted a committee), further observed that while there was no defect in the said action and if at all any, it was only procedural and an irregularity and not illegality. The Hon'ble Court observed that procedure should not be allowed to come in the way of justice and the Tribunal should not have terminated the appeal only for this reason. It thus restored the appeal before the Tribunal. This decision thus makes it evident that in the least ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven rank of a Central Excise Officer, calling for no need of for further investment. The Hon'ble High Court pointed out.......... "23. The Scheme of Section 2(b) of the Act, 1944 never contemplates appointment of the Officers of the Central Excise Department under the Rules. The Rules have to be read to supplement the provisions of the Act and to carry the purpose and object of the Act." Relevant parts of the said judgment are reproduced below: "19. The use of the word "or" in Section 2(b) of the Act, 1944 is clearly disjunctive and cannot be read as conjunctive. The (unamended) definition clause reads the Central Excise Officer, means any officer of the Central Excise Department. Similarly, in the amended definition clause Section 2(b) of the Act, 1944 Central Excise Officer, means Chief Commissioner of Central Excise..... The first category which is contemplated both in the amended and unamended definition of Central Excise Officer clearly indicates any officer of the Central Excise Department to mean a Central Excise Officer. Under (unamended definition) officers of the Central Excise Department as now exemplified in first part of the definiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he be invested with the power of Central Excise Officer and his appointment be published in the Official Gazette. The Commissioner, Central Excise is fully entitled to exercise all powers of Commissioner under the Act, 1944. The Notification dated 26-6-2001, may have been issued for the convenience of the officers, and investing of the powers may be required for the persons who are not working in the Central Excise Department. The notification dated 26-6-2001, contains several designations of the officers who were not working in the Department of Central Excise and for them the appointment was necessary by the Board for investing the power. Since the notification dated 26-6-2001 was issued by the Board under the 2001 Rules, all action done under the 2001, Rules, have been saved in the 2002, Rules as noticed above. The said Notification still continues to hold the field and the argument of the learned counsel for the petitioner that after the 2002, Rules, publication of appointment of Additional Director General/Commissioner in the Official Gazette was necessary cannot be accepted. We, however observe that in view of Rule 3(1) read with Rule 2(f) of the 2002, Rules, whenever the Boa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, endow with authority, entrust, furnish with rank, give a mandate, give authority, give power, grant authority, grant power, inaugurate, induct, install, instate, institute, license, mandare, name, nominate, ordain, permit, privilege put in commission, sanction". The concept of investing power by the Board presupposes that the person on whom the power is being vested does not have power to act as such. As observed above, Chief Commissioner of Central Excise or Commissioner of Central Excise who are Head of the Department and one of the highest officers of the Central Excise respectively are already invested with the power to carry out duties and functions under the Act, 1944. This can be explained by taking a illustration: An officer of the Central Excise Department is appointed as a Commissioner of Central Excise, and a notification is published of his appointment as a Commissioner of Central Excise. Now as per the argument of the learned counsel for the petitioner, for exercising any power of "Central Excise Officer" under the Act, 1944, a notification under Rule 3(1) of the Rules, 2002 is mandatory and without any notification under Rule 3(1) of the Rules, 2002 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the impact of its interpretation rendered in the case of Mall Eximp (P) Ltd., also so remarked by it in the case of Philips Electronics India Ltd., (2008 (229) ELT 668 T) actually turned a blind eye, towards the consequences of their construction, while announcing their decision in Mall Eximp (P) Ltd. 67. The Hon'ble Supreme Court in the case of Commissioner of Wealth Tax Vs. Hashmatunissa Begum-1989(40) ELT 239 (S.C.), while explaining the difference between interpretation and construction held that when two views in law are possible, the view that promotes constitutionality is to be preferred and observed: Para 12: "The rule of construction that if the statutory provision is susceptible or admits of two reasonably possible view then the one which would promote its constitutionality should be" preferred on the ground that the legislature is presumed not to have intended an excess of its own jurisdiction." 68. Clarifying on the interpretation aspect, the Hon'ble Apex Court in the case of State of Punjab Vs. Prem Sukhdas (1977 (3) SCR-408 had held that "The principle that where a provision is capable of one or two interpretations, the interpretatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yper technical view that the said co-ordinate bench has taken in the matter is completely unjustified, as it impedes the end of justice. 71. Further, there has been inconsistency in the approach of the Tribunal on the impugned point of law. Thus, in the case of Raiganj Plywood Products Vs. CCE, Siliguri, vide its order number SR480/KOL/2009 dated 16.10.09 the Tribunal in Para 8 observed as under. "..................the applicants appeared before the Commissioner and had not taken any objection regarding jurisdiction. It is not a case of the applicants that the adjudicating authority was not the Commissioner of Central Excise or some junior/ subordinate officer was holding charge of the Commissionerate and passed the adjudication order". 72. In view of our discussions aforesaid, the legal position as explained and pronouncements of higher judicial authorities as brought out in preceding paras we are of the firm opinion that the decision rendered by the Tribunal in the case of Mall Eximp (P) Ltd., is not good law and therefore it would not be appropriate to be relied upon to give any meaningful interpretation to the question involved. 73. Further, in view of the pronou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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