TaxTMI 
TaxTMI 
2017 (9) TMI 286
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....f the Finance Act, 1994 and submitted that, the power to search a premise is laid down therein. The Service Tax Rules, 1994 is a subordinate legislation and is subservient to Section 82 of the Finance Act, 1994. He has also referred to Section 14 of the Central Excise Act, 1944 and has submitted that, a Central Excise Officer duly empowered by the Central Government, is entitled to exercise the power of summoning any person to give evidence or to produce a document or for any other purpose in any enquiry which such officer is making for any of the purposes of the Act of 1944. He has submitted that, in the facts of the present case, there was no enquiry pending and that, an appropriate officer did not form an opinion requiring a search and seizure to be carried out at the premises of the petitioner. He has submitted that, a group of officers claiming to be authorised by the respondent no. 2 had visited the premises of the petitioner at Kolkata on July 17, 2015. A section of the officers were from the office of the Kolkata Directorate General of Central Excise Intelligence and the balance officers were from Chennai Directorate General of Central Excise Intelligence. He has referred t....
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....rity of reasoning as of Mega Cabs Pvt. Ltd. (supra) sub-rule (1) of Rule 5A of the Service Tax Rules, 1994 should also be declared ultra vires. Learned Additional Solicitor General appearing for the Union of India has submitted that, the respondent no. 2 is the intelligence wing of Central Excise. It had received credible intelligence that a large number of insurance companies were taking illegal credit of Central CENVAT. The Chennai Zonal Unit had initiated an investigation against the petitioner. Officers of such unit had visited the head office of the petitioner at Kolkata and had requested for certain documents under Summons proceedings. The visit of such officers under the Summons mode was authorised by the Director General, Directorate of Central Excise intelligence, New Delhi by the letter dated July 3, 2015 based on the permission sought by the Additional Director General of Directorate of Central Excise intelligence, Chennai Zonal Unit as contained in the letter dated June 18, 2015 of such Zonal Unit. The officers of the respondent no. 2 had issued the Summons dated July 17, 2015 under Section 14 of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 199....
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....l Unit had visited the premises of the petitioner on July 3, 2015 under Summons mode. Section 82 of the Finance Act, 1994 gives power to the Central Excise authorities to search a premises. Section 82 of the Finance Act, 1994 is as follows :- "82. Power to search premises.- (1) Where the Joint Commissioner of Central Excise or Additional Commissioner of Central Excise or such other Central Excise officer as may be notified by the Board has reasons to believe that any documents or books or things, which in his opinion shall be useful for or relevant to any proceedings under this Chapter, are secreted in any place, he may authorise in writing any Central Excise officer to search for and seize or may himself search and seize such documents or books or things. (2) The provisions of the Code of Criminal Procedure, 1973 (2 of 1974), relating to searches, shall, so far as may be, apply to searches under this section as they apply to searches under that Code." Section 94 of the Finance Act, 1994 gives power to the Central Government to make rules. In exercise of the powers conferred under Section 94 of the Finance Act, 1994, the Central Government had framed the rules called the Servi....
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....relating to searches for the searches to be made under the Act of 1994. The power to search given in Section 82, therefore, cannot be said to be unbridled. It has the checks, balances and parameters of the Code of Civil Procedure, 1973 governing its sphere of operation. Sub-rule (1) of Rule 5A of the Service Tax Rules, 1994 cannot be read to exceed the sphere of operation as circumscribed by Section 82 of the finance Act, 1994. In fact, the sub-rule does not profess to do so. It allows an officer to have access to any premises for the purpose of carrying out any scrutiny, verification and checks as may be necessary to safeguard the interest of the revenue. Access to the premises is a lesser power than the power to search the premises as granted under Section 82 of the Act of 1994. Sub-rule (1), therefore, cannot be construed to mean that, it is in excess of the parent power of searching the premises as granted under Section 82 of the Act of 1994. The first issue is, therefore, answered in the negative and against the petitioner. As noted above, the officers of the respondent no. 2 had entered into the premises of the petitioner on July 17, 2015. The entry was made on the basis of....