TaxTMI 
TaxTMI 
2008 (9) TMI 624
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....e thousand three hundred and thirty-eight and imposing a penalty of Rs. 60.00 lakhs (Rupees sixty lakhs) on the Appellants. The matter was initially heard on 2nd September, 2008 when Dr. Samir Chakraborty, learned Advocate appearing on behalf of the Appellants argued on a preliminary point that Shri C.M. Mehra had not been appointed as Commissioner of Central Excise, Kolkata-I as required under the law and hence, the impugned Order passed by him was without jurisdiction and therefore, the same was required to be set aside after waiving the requirement of predeposit. At the request of Shri J.A. Khan, learned S.D.R., the hearing was adjourned to today to enable him to obtain and produce a copy of the relevant Notification appointing Shri C.M.....
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....ra had no jurisdiction to issue the impugned Order confirming the duty demand and imposing the penalty under the Central Excise Act and Rules. He states that on two earlier occasions, Shri Mehra was found to have acted without having necessary jurisdiction in respect of the Siliguri Commissionerate, as is evident from the Tribunal's Orders in the case of Commissioner of Central Excise, Siliguri v. Mall Eximp (P) Ltd. - 2008 (227) E.L.T. 619 (Tri.-Kolkata) and in the case of Commissioner of Central Excise, Siliguri v. M/s. Hindustan Coco-cola Beverages Pvt. Ltd. Order No. M-208-209/KOL/08 dated 4-8-2008 [2008 (229) E.L.T. 370 (Tribunal)]. Dr. Chakraborty further argues that under Article 265 of the Constitution of India, no tax shall be levi....
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....ned by Shri H.K. Saran, Chief Commissioner, which states as under :- "In pursuance of the Ministry of Finance, Department of Revenue, Central Board of Excise and Customs, New Delhi's Office Order No. 279/2007 issued under F. No. A-22011-11-2007-AD II (Pt.) dated 29-10-2007 Shri A.K. Pawar, Commissioner, Central Excise, Kolkata-I Commissionerate is relieved w.e.f. 2nd November (A.N.), 2007, with direction to join his new place of posting i.e., Directorate of Housing & Welfare, Delhi. Shri C.M. Mehra, Commissioner, Haldia will hold additional charge of Kolkata-I Commissionerate till further orders." A copy of this Office Order dated 30-10-2007 had been endorsed to the Member (P&V), C.B.E.C, North Block, New Delhi. Shri Khan, learned SDR sta....
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....king jurisdiction to pass an Order demanding Central Excise duty and imposing penalty is a question of law and as held by the Hon'ble Supreme Court, such a question of law relating to jurisdiction can be raised at any stage of the proceeding including the appellate stage. In this connection, he cites the decision in the case of Moly & Another v. State of Kerala - (2004) 4 SCC 584 in which it has been held that plea relating to lack of jurisdiction is a pure question of law which can be raised in the appellate court even if not raised before the courts below. He also cites the decision of the Tribunal in the case of Nandi Metal Rolling Mills v. CCE - 1992 (60) E.L.T. 322 (Tribunal) in which the decision of the Hon'ble Supreme Court in the ca....
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....which has held that no authority can act in excess of the jurisdiction conferred on it and that even a High Court sitting as an appellate court in exercise of power under a statute cannot exercise its writ jurisdiction for the purpose of declaring provision of that law invalid in absence of any separate writ petition. He also argues that in view of the constitutional provision under Article 265, no tax can be levied and collected except by authority of law and hence, if an official is not vested with the necessary jurisdiction as provided under the tax law, he cannot confirm a duty demand and impose a penalty. Hence, this is a very basic and substantial issue and not merely a procedural and technical issue. He states that it is a very impor....
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....he Central Board of Excise and Customs by a Notification published in the Official Gazette. The Central Excise law lays down the scheme of appointment of officials and the manner of levy and collection of Central Excise duty as well as the penalty provisions. No one is above the law and the Central Board of Excise and Customs which is the Apex Body for Indirect Tax Administration should certainly be held to the highest standards and it should be serious about complying with the law as much as the tax-payers should comply with the law. 7. The law is emphatic and unequivocal that the Central Excise Officers including the Commissioner of Central Excise must be appointed by a Gazette Notification. If that is not done, an official cannot l....