2012 (11) TMI 951 - HC - Central Excise

Court upholds jurisdiction of Additional Director General/Commissioner in issuing show cause notice

The court dismissed the writ petition, upholding the jurisdiction of the Additional Director General/Commissioner, Central Excise, to issue the show cause ... Writ petition - Central Excise Officer - scope of the word 'or' in definition u/s 2(b) - jurisdiction – issue of show cause notice - proceedings for determining the liability under Section 11A – Held that:- In the present case, the issue which has been raised by the learned counsel for the petitioner is that Dr. Devender Singh, who was working as Additional Director General/Commissioner was not authorised to issue the show cause notice dated 01/10/2009, since he was not a Central Excise Officer because no notification having been issued and published in the Official Gazette as required under Rule 3(1) of the 2002, Rules. We have already considered the issue and held that Dr. Devender Singh, Additional Director General, Directorate General of Central Excise Intelligence having been authorised to act as a Commissioner, Central Excise was a Central Excise Officer, within the meaning of Section 2(b) of the Act, 1944 and was fully authorised to issue the show cause notice. Present is not a case, where there is any lack of jurisdiction in the Commissioner in issuing the show cause notice. The submission of the learned counsel for the petitioner that prior permission of the adjudicating authority is required before issuing the show cause notice dated 01/10/2009 is without any substance. Additional Director General/Commissioner, Central Excise had every jurisdiction to issue the show cause notice dated 01/10/2009 and no ground has been made out to quash the same. Issues Involved:1. Jurisdiction of Additional Director General in issuing the show cause notice.2. Interpretation of Section 2(b) of the Central Excise Act, 1944 and Rule 3 of the Central Excise Rules, 2002.3. Requirement of notification in the Official Gazette for appointment of Central Excise Officers.4. Necessity of prior approval from the adjudicating authority before issuing the show cause notice.Issue-wise Detailed Analysis:1. Jurisdiction of Additional Director General in issuing the show cause notice:The petitioner challenged the jurisdiction of Dr. Devender Singh, Additional Director General, Directorate General of Central Excise Intelligence, in issuing the show cause notice dated 01/10/2009 under Section 11A of the Central Excise Act, 1944. The petitioner argued that Dr. Devender Singh was not a 'Central Excise Officer' as defined under Section 2(b) of the Act, 1944, and his appointment had not been notified in the Official Gazette as required by Rule 3(1) of the Central Excise Rules, 2002. The respondents contended that the Additional Director General was a Central Excise Officer and fully entitled to issue the show cause notice under Section 11A of the Act, 1944.2. Interpretation of Section 2(b) of the Central Excise Act, 1944 and Rule 3 of the Central Excise Rules, 2002:The court examined the definition of 'Central Excise Officer' under Section 2(b) of the Act, 1944, which includes three categories of officers: (i) Chief Commissioner of Central Excise, Commissioner of Central Excise, etc., (ii) any other officer of the Central Excise Department, or (iii) any person (including an officer of the State Government) invested by the Central Board of Excise and Customs with any of the powers of a Central Excise Officer under this Act. The court emphasized that the word 'or' in Section 2(b) is disjunctive, meaning that the three categories are separate and distinct. The court concluded that the appointment of officers in the first two categories does not require notification in the Official Gazette, whereas the third category does.3. Requirement of notification in the Official Gazette for appointment of Central Excise Officers:The petitioner argued that Dr. Devender Singh's appointment as a Central Excise Officer required a notification in the Official Gazette, which had not been issued. The court held that the requirement for notification in the Official Gazette applies only to the third category of officers under Section 2(b) of the Act, 1944, i.e., persons who are not already officers of the Central Excise Department. Since Dr. Devender Singh was already a Commissioner of Central Excise, his appointment did not require notification in the Official Gazette.4. Necessity of prior approval from the adjudicating authority before issuing the show cause notice:The petitioner contended that prior approval from the adjudicating authority was required before issuing the show cause notice. The court rejected this argument, stating that no provision requires such approval. The court noted that the Additional Director General, Directorate General of Central Excise Intelligence, specified as a Commissioner, Central Excise, was fully entitled to issue the show cause notice under Section 11A of the Act, 1944.Conclusion:The court dismissed the writ petition, holding that the Additional Director General/Commissioner, Central Excise had the jurisdiction to issue the show cause notice dated 01/10/2009. The court found no grounds to quash the show cause notice and upheld its validity.