TaxTMI 
TaxTMI 
2010 (6) TMI 662
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....heard Mr. B. Sharma, learned Sr. Standing Counsel, Central Excise and Customs, for the appellants and Mr. G.N. Sahewalla, Sr. Advocate assisted by Mr. D. Senapati, Advocate for the respondents. 3. Briefly stated the facts in bare essential necessary for the present adjudication are that the Commissioner of Central Excise, Dibrugarh, had by his order dated 23-4-2008 dropped all the charges brought against M/s. Kothari Products Ltd., in Case No. Ex. App. 403/2008 and consequentially allowed its products to be cleared from the factory along with the free gifts of tobacco (purchased from another unit on payment of duty and was not subject to any charge). 4. The Committee aforementioned in the proceedings undertaken by it, on a consideration of the materials on record, adjudged the said decision of the Commissioner of Central Excise, Dibrugarh, in not imposing penalty on the persons/units named therein as erroneous and directed him (Commissioner of Central Excise, Dibrugarh) to apply to the Tribunal for a correct determination of the points as enumerated in its order dated 24-7-2008. 5. The respondents herein in the aforementioned appeals i.e. Ex. App. 403-407/2008 and....
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....Notification No. 23/2005-Central Excise (N.T.) of the even date the Chief Commissioners of Customs had been appointed to act as the Chief Commissioners of Central Excise for the purpose of the Committees under sub-section (1B) of Section 35B of the Act, to substantiate this contention, the learned Central Government Counsel has drawn our attention to the Office Order No. 186/2007 dated 26-7-2007 whereby Shri Rajendra Prasad and Hrishikesh Sharan had been promoted as Chief Commissioner of Customs, Kolkata and Chief Commissioner of Central Excise, Kolkata. As by an Office Order No. 146/2008 dated 23-6-2008, the Chief Commissioner of Customs, Kolkata, had been assigned the additional charge of Chief Commissioner of Central Excise, Shillong, according to Mr. Sharma, the Committee of these two persons was not only validly constituted but had the required jurisdiction and authority under the Act, and the Rules to discharge its functions as contemplated under Section 35E of the Act. 9. In the above premise, Mr. Sharma has reiterated that a separate notification under Rule 3(2) of the Rules was uncalled for more particularly in view of the use of the word "may" which left the concern....
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....e carefully considered the materials on record and the rival contentions made. At the outset it is considered essential to set out herein below for ready reference the relevant legal provisions involved. CENTRAL EXCISE ACT, 1944 "Section 2(b) :- Central Excise Officer means the Chief Commissioner of Central Excise, Commissioner of Central Excise, Commissioner of Central Excise (Appeals), Additional Commissioner of Central Excise, Joint Commissioner of Central Excise, Deputy Commissioner of Central Excise, Assistant Commissioner of Central Excise or any other officer of the Central Excise Department, or any person (including an officer of the State Government) invested by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963, with any of the powers of a Central Excise Officer under this Act." Section 35B(1B)(i) :- ........................................................................ The Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963, may, by notification in the Official Gazette, constitute such Committees as may be necessary for the purposes of this Act. (ii) Every Committee constit....
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....n the instant proceedings is in exercise of such power of review which the respondents have contended to be purported, unreal and lacking in jurisdiction. 15. Certain basic facts ought to be noticed. By the Notification No. 23/2005-C.E. (N.T.), dated 13-5-2005 issued by the Joint Secretary to the Government of India, Finance Department, the appointment of Chief Commissioners of Customs to act as the Chief Commissioners of Central Excise for the purpose of constitution of committees under Section 35B(1B) of the Act was notified. The constitution of such committees was similarly notified by the Notification No. 24/2005-C.E. (N.T.) of the even date. At Sl. No. 21 of the said notification the composition of the committee for the area of jurisdiction (Dibrugarh/Shillong) has been indicated as hereunder : 1. Chief Commissioner of Central Excise, Shillong. 2. Chief Commissioner of Central Excise, Kolkata. 16. As referred to hereinabove, by Office Order No. 186/2007, dated 26-7-2007 of the Department of Revenue, Ministry of Finance, Central Board of Excise and Customs, whereas amongst others Shri Rajendra Prasad was promoted as Chief Commissioner of Customs, Kolkata....
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....e of the Rules being to supplement and consolidate the parent enactment for effective implementation thereof we are not inclined to sustain the plea of optional compliance of Rules 3(2) as asserted on behalf of the appellants. 20. The Apex Court in Bachahan Devi, supra, while dilating on the scope and purport of the expression, "may" and "shall" observed that the word may in a statutory provision would not per se indicate that the provision is directory in nature and that in some cases the legislature may use the expression as a matter of pure courtesy and yet mandate a statutory force. Their Lordships reiterated the oft quoted proposition that when the word "may" involves a discretion coupled with an obligation or where it confers a positive benefit to a general class of subjects in a utility Act, or where the Court advances a remedy and suppresses the mischief, or where giving the words a directory significance would defeat the very object of the Act, the word "may" should be interpreted to convey a mandatory force. 21. In view of the authoritative pronouncement as above and having regard to the scheme of the Act and the underlying purpose of the notification to acqua....