TaxTMI 
TaxTMI 
2013 (7) TMI 240
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.... Excise Mumbai has the powers under Section 83A of the said Finance Act to nominate any other Commissioner within his jurisdiction to adjudicate the case pertaining to Commissioner of Service Tax, Mumbai. 3. The learned Counsel for the applicants submits that under Section 73 of the Finance Act, 1994 where any Service Tax is not levied or not paid or short levied or short paid or erroneously refunded, the Central Excise Officer has to issue a notice to the assessee asking him to show cause as to why the amount specified in the notice should not be paid by the noticee. The terms 'Central Excise Officer' has not been defined under the Finance Act, 1994 and as per Section 65(121), in respect of words and expressions used but not defined in Chapter V of the said Finance Act, definition under Central Excise Act, 1944 or the Rules made thereunder shall apply in relation to Service Tax as they apply in relation to Central Excise duty. Section 2(b) of the Central Excise Act defines the term "Central Excise Officer" as Chief Commissioner of Central Excise, Commissioner of Central Excise, Commissioner of Central Excise (Appeals), Additional Commissioner of Central Excise, Joint Commissioner....
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....order was amended vide Order No. 2/2/1994 dated 4.7.1994 and 3/3/1994/ST dated 11.10.1994. The Commissioner of Service Tax, Mumbai has not been notified or appointed as Central Excise Officer thereunder. 3.2 The learned Counsel relies on the decision of the Hon'ble Apex Court in the case of Commissioner of Customs Vs. Sayed Ali - 2011 (265) ELT 17 (SC), wherein it was held that the Commissioner of Customs (Prev.), though a Customs Officer, was not a 'proper officer' for the purposes of Section 28 of the Customs Act and, therefore, could not exercise the function under the said Section 28. In the light of this decision of the Hon'ble Supreme Court, the contention of the Revenue that all Service Tax Commissioners are already Central Excise Officers and there is no need for a separate appointment once again for the purposes of Service Tax is not tenable. If this view of the Revenue is accepted, it will lead to serious absurdity. If that be so, there was no need to issue notifications defining jurisdictional limits or the powers of any of the Central Excise Officer under Notification No. 14/2002-CE(NT) defining the territorial limit of Central Excise Officer. Similarly, there was no n....
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....oner of Service Tax cannot have jurisdiction to issue and adjudicate the who-cause notices involved in the present applications. Letter No. A.1101w3/43/2004-Ad IV dated 14.9.2004 relied upon by th Revenue is also not sufficient as the said letter clearly stipulates that the CBE&C has decided to divert the post of Commissioner of Central Excise (Appeals)-I, Mumbai as Commissioner of Service Tax, Mumbai. The diversion of a post of Commissioner of Central Excise (Appeals)-I, Mumbai as Commissioner of Service Tax, Mumbai cannot be construed as appointment of the Commissioner of Service Tax, Mumbai as "central Excise officer" in terms of Rule 3 of the Service Tax Rules. Reliance placed by the Revenue on the decision of the Hon'ble Allahabad High Court in the case of Raghunath International Ltd. Vs/. Union of India 2012 (280) ELT 321 (All) is misplaced as the facts were completely different in that case. In the present case though the notices were made answerable to Commissioner of Service Tax, Mumbai, corrigenda were issue by the Commissioner of Service Tax, Mumbai wherein the applicants/notices were asked to show cause to Commissioner of Central Excise, Thane-I. The said corrigendum wa....
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....ll. Further, Notification No. 16/2007-ST does not define local limits within which the adjudication has to take place which is contrary to the rule making powers under Rule 3 of the Service Tax Rules. This is evident from regarding of Notification No.26/2006-ST dated 28.7.2006 and Notification No.30/2006-ST dated 11.12.2006 wherein the Commissioner of Service Tax has been appointed by the CBEC as Central Excise Officer for the purposes of investigation and adjudication of cases in respect of the assesses mentioned therein. It is further submitted that once the power has been exercised and exhausted by the CBEC under Section 37A of the Central Excise Act, the same cannot be exercised by the Chief Commissioner of Central Excise. 3.6 As regards the reliance placed by the Revenue on the opinion given by the Additional Solicitor General of India, the same is not binding on this Tribunal and in any case the same does not advance the case of the Revenue. Even though the legislation has to be interpreted to make it workable and the purposive construction has to be resorted to, it is equally true that it in matter relating to jurisdiction of authority, the same cannot be lightly assumed as....
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.... to declare them as Central Excise Officer in terms of Section 2(b) of the Central Excise Act, 1944 because they are already Central Excise Officers. Further, vide the Circular No.A/11013/47/2004/Ad-IV dated 14.9.2004, the post Commissioner of Central Excise, (Appeals)-I, Mumbai has been diverted as the Commissioner of Service Tax, Mumbai. As per section 2(b) of the Central Excise Act, 1944, Commissioner of Central Excise(Appeals) is also Central Excise Officer and accordingly, there was no need to appoint Commissioner of Service Tax, Mumbai as a Central Excise Officer all over again. He relies on the decision of the Hon'ble High Court of Allahabad in the case of Raghunath International Ltd. Vs. UOL [2012 (280) ELT 321 (All.)] in support of this contention. 4.1 The learned Special Consultant submits that as per Notification NO.16/2007-ST, CBE&C can appoint any Commissioner of Central Excise and Commissioner of Central Excise (Adjn) as Commissioner of Central Excise throughout India for the purposes of investigation and adjudication in terms of Section 83A of the Finance Act, 1994 read with Rule 3 of the Service tax Rules, 1994. This power of the CBE&C has been delegated to the Chi....
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....and conclusions are discussed in the ensuing paragraphs. 5.1 Rule 3 of the Service Tax Rules, 1994 reads as follows:- "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 Officers shall exercise his powers." 5.2 In pursuance thereto, the CBEC has issued Order No. 4/2/2004-Service Tax dated 18.5.2004 which reads as under:- "F.No. 137/43/2003-CX.4 GOVERNMENT OF INDIA MINISTRY OF FINANCE DEPARTMENT OF REVENUE CENTRAL BOARD OF EXCISE & CUSTOMS New Delhi: the 14th May 2004 Order No. 4/1/2004-Service Tax Service Tax Rule (3) Sub: Appointment of Officers for assessment and collection of Service Tax. With the approval of Government of India, Central Board of Excise and Customs hereby notifies the creation of following six exclusives Service Tax Commissionerate along with their territorial jurisdiction. The officers namely Commissioner and other officers subordinate to him are hereby duly empowered as proper officer, under Rule 3 of Service....
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....ce Act, 1994 within the jurisdiction specified. Therefore, the expression, "Commissioner and other officers sub-ordinate to him" mentioned in the said order refers to a Commissioner of Central Excise and other central officers subordinate to him. It, therefore, goes without saying that the Commissioner of Central Excise and officers subordinate to him have been appointed as officers of Commissionerate of Service Tax, Mumbai with the jurisdiction of Central Excise, Mumbai - I & II except Raigad Commissionerate. Any other interpretation, as suggested by the ld. Counsel for the appellants, would render the said Order infructuous. 5.4 Further, from Circular No. A/11013/47/04/Ad-IV dated 14.9.2004 it can be seen that the CBE&C has diverted the post of Commissioner of Central Excise (Appeals)-I, Mumbai as Commissioner of Service Tax, Mumbai. Under Section 2(b) of the Central Excise Act, 1944 'Central Excise Officer' includes 'Commissioner of Central Excise (Appeals)'. It, therefore, follow that the Commissioner of Service Tax, Mumbai is none other than Commissioner of Central Excise (Appeals)-I, Mumbai. Therefore, the argument of the applicants that the Board has to appoint an officer a....
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....yed Ali case was that whether the Commissioner of Customs (Prev.) can be considered as 'proper officer' for the purpose of Section 28 of the Customs Act, 1962. Section 28 envisaged issue of a notice by the "proper officer" whenever there was any short levy or short payment, non-levy or non-payment or erroneous refund of duty. Section 2(34) of the said Customs Act defined 'proper officer' as an officer of customs who has been assigned those functions by the Board and the Commissioner of Customs in relation to any function to be preferred under the Custom Act. In other words, Section 28 envisaged that the function thereunder should be preferred should be performed by an officer who has been assigned those functions. If an officer was not assigned the function, he could not perform those functions. In the case before us. Section 73 which deals with issue of notice for determination of non-levy, short levy or erroneous refund does not use the term 'proper officer' at all. It merely says that Central Excise Officer may issue a notice in case there is non-levy or short levy or erroneous refund. There is no assignment of function specifically for the purpose of Section 73. Therefore, any ....
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.... notice under Section 11A of the Act, 1944 there has to be notification in the Official Gazettee of his appointment as Central Excise Officer this interpretation leads to absurdity since neither Section 2(b) of the Act,1944 nor Rule 3 of the 2002, Rules can be read to mean that even appointment of Commissioner of Central Excise is to be notified in the Official Gazettee before he exercises power under Section 11A of the Act, 1944. This reinforces our view that appointment by notification which is to be published in the Official Gazettee is contemplated only with regard to the persons who are not already officers of the Central Excise Department. Since investing of power by the Board is contemplated in only last category in the definition of Section 2 (b) of the Act, 1944 and all three categories are joined by the word "or" which is disjunctive". In our considered view, the ratio of the above decision applies squarely to the facts of the case before us and accordingly there was no need to appoint a Commissioner of Central Excise as 'Central Excise Officer' before he is invested with the powers under Chapter V of the Finance Act, 1994. 5.8 In AIR 1997 SC 1006, after referring to nu....
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....of such cases as may be assigned by the Board. In other words, the Chief Commissioner of Central Excise has been delegated the power of the Board to assign investigation and adjudication of cases to any other Commissioner of Central Excise within his jurisdiction in respect of Service Tax. A combined reading of Section 37A of the Central Excise Act, 1944, Section 83 and 83A of the Finance Act, 1994, Rule 3 of the Service Tax Rules, 1944 and Notification No. 16/07 read with Notification No.6/2009-ST dated 30.1.2009 make it abundantly clear that the Chief Commissioner of Central Excise can assign adjudication of Service Tax cases to any Commissioner of Central Excise within his jurisdiction. In exercise of those powers, Order No. 1/2009-ST dated 10.2.2009 has been issued by the Chief Commissioner of Central Excise, Mumbai-I assigning the specific cases as mentioned in the said order for adjudication by Commissioner of Central Excise, Mumbai-IV, Commissioners of Central Excise, Thane-I and Thane-II. There is no dispute about the fact that the above Commissioners fall within the jurisdiction of Chief Commissioner of Central Excise, Mumbai-I. Therefore, the assignment of cases by the Ch....
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....her words, the power under Section 83A for adjudging penalty includes inherently the power of determination of Service Tax liability; otherwise the entire purpose of Section 83A would be rendered futile. It is a well accepted principle of statutory interpretation that no Section of statute should be interpreted in such a way so as to make it a nullity. The whole purpose of interpretation of statute is to achieve the object and purpose of statute. Viewed from this angle, the argument of the appellant that the Chief Commissioner of Central Excise does not have power to assign cases for adjudication of Service Tax liability along with interest thereon and imposition of penalty to Commissioner of Central Excise, Thane-I or any other Commissioner of Central Excise within his jurisdiction is devoid of merits and has to be rejected outright. 6.3 This Tribunal in the case of Northern India Woollen Mills Vs. Collector of Customs - 1991 (53) ELT 81 (Tri). in the context of an exemption notification under DEEC Scheme, held that "demand of duty, confiscation and levy of penalty have to be done in a composite manner and duty demand cannot be segregated from confiscation and penalty. Severing t....
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....er to imposition of penalty alone. The said section 83A does not read as "only penalty" or "solely penalty". It simply reads as "when ..................... any person is liable to penalty". A similar issue arose in the case of UOI vs. Tata Iron & Steel Co. Ltd. [1977(1) ELT J 61 (SC)] in context of interpretation of notification No. 30/60-CE dated 1-3-1960. The said notification provided for a concessional rate of excise duty on "steel ingots if produced out of scrap obtained from duty paid pig iron". The respondent therein claimed set-off of duty on steel ingots manufactured from duty paid pig iron scrap in admixture with other non-duty paid materials which was sought to be denied by the Revenue but which was allowed by the High Court and the matter went to hon'ble apex court for decision and the Supreme Court held as follows:- "The High Court rightly said that the notification does not say that the exemption is granted only when duty paid pig iron is used and that the exemption would not be available if duty paid pig iron is mixed with other non-duty paid materials. If the intention of the Government were to exclude the exemption to duty paid pig iron when mixed wit....