TaxTMI 
TaxTMI 
2016 (3) TMI 404
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....o it by the Chief Commissioner in terms of powers conferred in terms of Notification No. 6/2009 ST dated 30/01/2009 with authorised the Chief Commissioners to exercise the power of Central Board of Excise and Customs under Section 83A of the Finance Act, 1994 and under that section the Central Board of Excise and Customs was conferred the power in relation to the case involving penalty only while the show cause notice in this case did not merely involve penalty but also service tax and therefore under the power conferred under Notification No. 6/2009 - 60 the Chief Commissioners was not empowered to assign this case to the concerned adjudicating authority. Consequently the impugned order is an order issued by a person not competent to issue the same and therefore is a nullity. (b) the appellant was not providing technical testing and certification agency service inasmuch as it merely accredited / certified various organisations for the purpose of certifying various entities and granting certifications like ISO certifications. (c) It was not providing any technical inspection and certification of any material, goods or immovable property. ....
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....wording of the Notification No. 6/2009-ST makes it clear that it authorised the Chief Commissioners (for the purpose of assigning adjudication cases) to exercise powers exercisable by CBEC, not merely under the provisions of Section 83A ibid but in terms of provisions of Section 83A read with the Notification No. 16/2007-ST as well. Thus, the contention of the appellants that only powers exercisable by CBEC under Section 83A were delegated to Chief Commissioner vide Notification No. 6/2009-ST is misconceived. Notification No. 16/2007-ST is reproduced below: In exercise of the powers conferred by section 83A of the Finance Act, 1994 (32 of 1994), read with rule 3 of the Service Tax Rules, 1994, the Central Board of Excise and Customs appoints the officers of Central Excise specified in Column (2) of the Table below, and invest with him all the power of Central Excise Officer specified in Column (3) of the said Table to be exercised within such jurisdiction and for such purposes as specified in Columns (4) and (5) of the said Table respectively. TABLE S. No. Central Excise Officer Central Excise Officer whose power are to be exercised Jurisdiction Purposes ....
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....mers by assuring that accredited bodies are competent to carry out the work they undertaken. Accreditation bodies, which are members of International Accreditation Forum (IAF) are required to operate at a high standard and require the bodies they accredit to comply with an appropriate international standards. Certificates issued by bodies accredited by the members of IAF, Multilateral Standards (MLA) are relied upon all over the world, because the MLA assures the customers that the certificate is credible. Accreditation is the mechanism accepted by WTO/TBT agreements for establishing equivalence of certificates/ inspection schemes operated in different countries, as also the test results of various laboratories. M/s QCI is a member of IAF. As an accreditation body, it conducts assessment of organisations, seeking accreditation. It deploys a team of experts to find out how the certification body addresses various requirements for meeting the high standards of its responsibility. The purpose of such assessment is to find out whether the certification body possesses the wherewithal, for conducting study of the organisation whose management process it would certify and that the certifi....
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....by M/s QCI is to assess organisation who is engaged in awarding certificates to bodies about quality management system and environmental management system. This accreditation is the formal recognition of competence of the organisation to assess and certify other bodies about quality management system and environment management systems. The Accreditation is provided after following a due process & procedure & is granted for three years. This certification is given only after the applicant meets the criteria of accreditation and all non-conformities found against the criteria of accreditation during assessment have been closed to the satisfaction of the board". (emphasis added). At this stage, it is useful to reproduce the definition of "technical inspection and certification" provided in Section 65 (108) of the Finance Act, 1994. (108) "technical inspection and certification means inspection or examination of goods or [process or material or information techno-logy software] or any immovable property to certify that such goods or [process or material or information technology software] or immovable property qualifies or maintains the specified standards, including funct....
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....ave perused the said judgement and would like to respectfully state that the said judgement does not seem to have the nuances of the said principle right. For the simple reason that, as stated earlier the word "process" is not in the company of the words which form/ constitute a society. Even so, the only inference which was drawn in the said judgement by applying the said principle was that the 'process' mentioned in the definition "could relate only to physical and chemical processes". Even if the said inference is accepted, there is no doubt that for assessment whether an organisation seeking accreditation/ certification by the appellant had the competence to assess and certify other bodies about quality management and environment management systems would at the very least require the appellant to undertake a physical verification processes to ascertain and assess the processes adopted, the efficacy of such processes, the ability of the organisation to properly carry out such processes and availability and efficacy of tools/equipment, if any, required to enable the organisation to carry out such processes before the organisation can be accredited / certified by the appellant as ....
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....ul misstatement / suppression of facts. An assessee who has a bonafide belief that it is not liable to tax would naturally not obtain registration, assess itself to tax or file returns. This by itself does not tantamount to wilful misstatement / the suppression of facts. Further the fact that the appellant initially took registration on 10.08.2000 thinking that it was providing management consultant service and even paid tax thereunder for a while before it was advised that it was not liable to pay service tax under Management Consultant Service by its legal Consultant, establishes its bonafides. The appellant is a council comprising 38 members having representatives of government, industry and other stakeholders. In the case of Uniworth Textiles Ltd vs. Commissioner of Central Excise Raipur 2013 (288) guilty 161 (SC) it was held that mere non-payment of duties is not equivalent to collusion or wilful misstatement or suppression of facts, otherwise there would be no situation for which ordinary limitation period would apply. Inadvertent non-payment is to be met within the normal limitation period and the burden is on Revenue to prove allegations of wilful misstatement. The onus is ....