2008 (10) TMI 44 - AT - Service Tax

Tribunal Rules in Favor of Commissioner in Service Tax Assessment Jurisdiction Dispute

COMMISSIONER OF C. EX., CUS. & ST., BBSR-II Versus ORES INDIA (P) LTD.

The Tribunal held that the Commissioner, Bhubaneswar-II had jurisdiction over the Respondents for service tax assessment. However, the appeal filed by the ... Commissioner has held that the impugned SCN “fails on the limited ground of jurisdiction” and he has thus disposed of the same “as without jurisdiction” - present Appeal by revenue on the basis of an authorization issued by the Committee of Chief Commissioners holding that the impugned order is not legal – Notifications in Official Gazette absent conferring jurisdiction – hence contention; of revenue that insistence on such notifications affecting revenue interest, is not acceptable Issues Involved:1. Jurisdiction of Commissioner, Central Excise in Service Tax Cases2. Jurisdiction of the Committee of Chief Commissioners and Maintainability of the Appeal filed before the TribunalDetailed Analysis:Issue No. 1: Jurisdiction of a Commissioner, Central Excise in Service Tax Cases1. Background and Context:- A show cause notice was issued by the Commissioner, Bhubaneswar-II to the Respondents demanding Service Tax and proposing penal action under Sections 76, 77, and 78 of the Finance Act, 1994.- The Commissioner held that he lacked jurisdiction over the services provided in Jharkhand, thus disposing of the notice as 'without jurisdiction'.- The Department appealed this decision, while the Respondents filed a Cross Objection.2. Tribunal's Observations:- The Tribunal noted that the impugned order was passed solely on jurisdictional grounds without addressing the merits of the case.- The Respondents' registered office is in Barbil, Orissa, within the jurisdiction of Bhubaneswar-II Commissioner, but the services were provided in Jharkhand, under the jurisdiction of Commissioner, Jamshedpur.- The Tribunal emphasized that the jurisdiction of excise officials in service tax matters is generally confined to their territorial limits unless specified otherwise.3. Arguments and Legal Provisions:- The Department argued that since the Respondents' registered office is in Orissa, the Commissioner, Bhubaneswar-II has jurisdiction.- The Tribunal referred to Service Tax Order No. 1/1/94, which specifies that jurisdiction is determined by the location of the assessee (service tax payer) rather than the location where the service is provided.- The Tribunal concluded that the Commissioner, Bhubaneswar-II has jurisdiction over the Respondents as their registered office is within his territorial limits, irrespective of where the service was provided.4. Conclusion on Jurisdiction:- The Tribunal held that the Commissioner, Bhubaneswar-II has jurisdiction over the assessment and collection of service tax from the Respondents based on the location of their registered office.- The Tribunal noted that the Service Tax Order does not envisage concurrent jurisdiction by multiple Commissioners over the same assessee.Issue No. 2: Jurisdiction of the Committee of Chief Commissioners and Maintainability of the Appeal filed before the Tribunal1. Background and Context:- The Tribunal examined whether the Committee of Chief Commissioners was validly constituted and had the jurisdiction to review the impugned order and authorize the filing of the Appeal.2. Legal Requirements and Previous Cases:- Under Section 86(2) of the Finance Act, 1994, the Committee of Chief Commissioners can direct the filing of an appeal if they object to an order.- The Tribunal referred to previous cases where appeals were dismissed because the officers who signed the Review Orders were not appointed by notification in the Official Gazette, as required by law.3. Arguments and Tribunal's Findings:- The Department's representative argued that the requirement of Gazette Notification should not apply to departmental officers promoted within the department.- The Tribunal rejected these arguments, emphasizing that appointments must be made by Gazette Notification to vest officers with the necessary powers under the law.- The Tribunal found that the officers who signed the Review Order in this case were not appointed by the required Gazette Notification, rendering the Review Order and subsequent appeal invalid.4. Conclusion on Maintainability:- The Tribunal held that the appeal was filed pursuant to an invalid Review Order, as the Committee of Chief Commissioners was not legally constituted.- Consequently, the Tribunal dismissed the departmental appeal and disposed of the Cross Objection filed by the Respondents.Final Judgment:The Tribunal concluded that while the Commissioner, Bhubaneswar-II had jurisdiction over the Respondents, the appeal filed by the Department was dismissed due to the invalid constitution of the Committee of Chief Commissioners. The Cross Objection by the Respondents was also disposed of accordingly.