TaxTMI 
TaxTMI 
2019 (8) TMI 714
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....ugned Order dated 10.07.2019 passed by Respondent No.3; (c) This Hon'ble Court be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate Writ, Order or direction, directing the Respondents : (i) to forthwith supply the documents as mentioned in Sr.Nos.59 to 63 to Annexure-A to the Show Cause Notice. (ii) to pass separate orders under the provisions of the Central Excise Act, 1944 and the Central Goods and Services Tax Act, 2017; (iii) not to implement and execute the impugned order dated 10.07.2019. (iv) not to initiate recovery action in terms of the impugned order dated 10.07.2019 (d) pending the hearing and final disposal of the Petition, this Hon'ble Court be pleased to direct the Respondents, by themselves, their servants and agents/officers/ subordinates to stay the operation Order-In-Original No.23/ADJ/JC-AKS/OA/2019-20 dated 10.07.2019 passed by the Joint Commissioner, GST & Excise; (e) for ad-interim relief in terms of prayer (c) above; (f) for costs of the Petition and orders thereon; and (g) for such further and other reliefs, as this Hon'....
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....ervices Tax Act, 2017, made applicable vide Section 142(8)(a) of the Central Goods and Services Tax Act, 2017. 3. The writ-applicant was also called upon to show-cause as to why :- (i) the total tax amounting to Rs. 7,18,77,892/- (i.e. CGST @1.5% = 3,59,38,946/- SGST @1.5% = 3,59,38,946/-) payable on the supply of taxable goods by way of willful suppression of unaccounted manufacture and selling activity of articles of diamond studded gold jewellery falling under Chapter Heading 7113 as per Schedule No.V of GST Tariff contained in Notification No.1/2017-C.T (Rate) by adopting Chapters 1 to 98 of the Customs Tariff Act, 1975, attracting CGST @l.5% and SGST @1.5% ad-valorem, during the period from July-2017 to 11.01.2018 with an intention to evade the said Taxshold not be demanded and recovered in terms of the provisions of Section 74(1) of the Central Goods and Services Tax Act, 2017, read with the provisions of Section 6 of the Gujarat SGST Act, 2017, to recover the State Tax (i.e. SGST); (ii) the total tax amounting to Rs. 46,75,791/- (CGST @1.5% = 2337895.6 + SGST @1.5% 2337895.6) payable on the above referred seized goods totally valued at Rs. 15,58,59,711/-....
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....against M/s Palak Designer Diamond Jewellery, Surat for the period from July-2017 to 11.01.2018 in terms of the provisions of Section 74(1) of the Central Goods and Services Tax Act, 2017. (iv) determine liability and recovery of State Tax (i.e. SGST) amounting to Rs. 3,59,38,946/- (three crore fifty nine lakh thirty eight thousand nine hundred forty six rupees) against M/s Palak Designer Diamond Jewellery, Surat for the period from July-2017 to 11.01.2018 in terms of the provisions of Section 74(1) of the Central Goods and Services Tax Act, 2017 read with the provisions of Section 6 of Gujarat GST Act, 2017 to recover State Tax (i.e. SGST) from M/s Palak Designer Diamond Jewellery, Surat. (v) order to confiscate the seized goods totally valued at Rs. 15,58,59,711/- (Rs. 4,10,68,644/- as per Order of seizure dated 12.01.2018 and Rs. 11,47,91,067/- as per Order of seizure dated 14/15.03.2018) under the provisions of Section 130 (i, ii & iv) of the Central Goods and Services Tax Act, 2017. I hereby give option to redeem the said goods on payment of redemption fine of Rs. 15,11,83,920/- to M/s Palak Designer Diamond Jewellery, Surat in lieu of confiscation of the sai....
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....Tax Act, 2017 against M/s Palak Designer Diamond Jewellery, Surat, Shri Rajubhai N. Patel, Sh. Kalpeshbhai Vaghasiya, Sh. Mayurbhai Patel, Sh. Bharatbhai Patel and Sh. Paresh Mansukhbhai Desai. (xi) appropriate the Central Tax (i.e. CGST) of Rs. 6,16,030/- and State Tax (i.e. SGST) of Rs. 6,16,030/- paid vide DRC-03 dated 28/01/2019, the tax amount of Rs. 7,90,793/- as SGST paid vide DRC-O3 dated 30/01/2019 as per sec 74(8) of the Central Goods and Services Tax Act, 2017 and the Gujarat Goods and Services Tax Act, 2017 respectively against the show-cause notice. I also appropriate the seized cash of Rs. 13,09,920/- with interest which has been fixed deposited under CIF No.9008921206-0 in the Account No.37611264402 in the name of GST AND CENTRAL EXCISE COMMISSIONERATE in the SBI, Main branch, Chowk Bazaar, Surat, against the tax demand determined as above. In addition to the above, the amount of Rs. 1,84,808/- paid as penalty vide DRC-03 dated 28/01/2019 is also appropriated. Accordingly, balance amount of the tax demand and the penalty to be recovered by the proper officer. This order is passed without prejudice to any other action that may be taken against them o....
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....ication of Show Cause Notice in Central Excise and Service Regarding. Kind attention is invited to the following circulars issued by the Board regarding adjudication of cases in Central Excise and Service Tax. In supersession of these circulars and any other circular issued on the above subject, instructions from paragraph 2 onwards are hereby issued to revise the existing monetary limits for adjudication and to allow greater flexibility in allocation of cases amongst adjudicating authorities. (i) Circular No.752/68/2003-CX, dated 1.10.2003 [2003 (157) E.L.T. (T30)] (ii) Circular No.806/3/2005-CX, dated 12.1.2005 [2005 (179) E.L.T. (T21)] (iii) Circular No.865/3/2008-CX, dated 19.2.2008 [2008 (223) E.L.T. (T3)] (iv) Circular No.922/12/2010-CX, dated 18.5.2010 [2010 (253) E.L.T. (T45)] (v) Circular No.957/18/2011-CX, dated 25.10.2011 [2011 (273) E.L.T. (T5)] (vi) Circular No.80/1/2005-S.T., dated 10.8.2005 [2006 (1) S.T.R. (C66)] (vii) Circular No.99/2/2008-S.T., dated 11.3.2008 [2008 (10) S.T.R. (C3)] (viii) Circular No.130/12/2010-S.T., dated 20.9.2010 [2010 (20) S.T.R. (C9)] 2. Adjudication ....
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....ry 1997, prescribing the monetary limits vis-a-vis the powers of adjudication by the Commissioners/Additional Commissioners/ Deputy Commissioners/Assistant Commissioners. The Supreme Court took into consideration the definition of 'Central Excise Officer' as defined under Section 2(b) of the Central Excise Act. Having regard to the definition, the Supreme Court took the view that even an Additional Commissioner or an Assistant Commissioner or a Deputy Commissioner or any other officer of the Central Excise or any person invested by the Board with the powers of the Central Excise Officer would be a Central Excise Officer. The Supreme Court took notice of the fact that, although the Legislature has made such change, yet the Board issued a circular prescribing the monetary limits. 10. The question before the Supreme Court was : Can the Board override the provisions of the Act by issuing directions in the manner in which it was done and if the Board could not do so, then what would be the effect of such circulars ? 11. The Supreme Court, ultimately, held as under : "6. It must be mentioned that the only point agitated is that the Superintendent had no jurisdictio....
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....ludes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India; (ii) "relevant date" means, -- (a) in the case of excisable goods on which duty of excise has not been levied or paid or has been shortlevied or short- paid -- (A) where under the rules made under this Act a monthly return, showing particulars of the duty paid on the excisable goods removed during the month to which the said return relates, is to be filed by a manufacturer or producer or a licensee of a warehouse, as the case may be, the date on which such return is so filed; (B) where no monthly return as aforesaid is filed, the last date on which such return is to be filed under the said rules; (C) in any other case, the date on which the duty is to be paid under this Act or the rules made thereunder; (b) in a case where duty of excise is provisionally assessed under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof; (c) in the case of excisable goods on which duty of excise has been erroneousl....
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....By virtue of Clause (a) of Section 33 of Central Excise Act, 1944, Commissioners can adjudicate the cases of confiscation and penalty without limit. This power has been delegated to Deputy Commissioners by CBR Notification No.12-C.Ex., dated 17th May, 1947, to Assistant Commissioners of Central Excise by CBR Notification No.8-C.E., dated 2nd September, 1944 and to Superintendent of Central Excise by CBR Notification No.93/59, dated 28th November, 1959. (ii) So far as the confirmation of duty is concerned, it is observed that Section 11A empowers any Central Excise Officer to issue the notice and determine the duty due. (iii) Likewise, the "proper officer" i.e. Jurisdictional Central Excise Officer can issue notice and adjudicate the demands under Rule 9(2)/Rule 57-I/Rule 57U of Central Excise Rules, 1944. (iv) In order to bring about uniformity and objectivity the Board issued instructions defining powers of adjudication of specified Central Excise Officers taking 'duty involved' as the criterion. 3. Those show cause notices where adjudication orders are not passed upto 28th February, 1997, will be adjudicated as provided hereinafter :- ....
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....ect of cases covered under category (C) of Para 3 above, show cause notices will be issued by Assistant Commissioner. 6. The definition of expression "Commissioner" contained in Rule 2(ii) was amended by Notification No. 11/92-C.E. (N.T.), dated 14-5-1992. Accordingly, an Additional Commissioner of Central Excise is not a Commissioner for the purposes of appeal. Therefore, appeal against the Order-in-Original passed by an Addl. Commissioner of Central Excise shall lie to the Commissioner of Central Excise (Appeals) and not to the CEGAT. 7. All Previous Board's Circulars relating to issue of show cause notices and their adjudications except the Circular No. 13/93-C.X., are hereby rescinded. 8. An immediate exercise should be undertaken thereafter to take the stock of the pendencies as on 1st March and transfer of the relevant files and records to respective adjudicating authorities by 15th March, 1997 under proper receipt. This re-cast figures should be reflected suitably in the Monthly Technical Report of March, 1997 to be submitted in April, 1997. 9. Receipt of this Circular may please be acknowledged. 10. The trade and field format....
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....for the purpose of and in furtherance of the provisions of the Act. The instructions issued by the Board have to be within the four corners of the Act. If, therefore, the Act vests in the Central Excise Officers jurisdiction to issue show-causenotices and to adjudicate, the Board has no power to cut down that jurisdiction. However, for the purposes of better administration of levy and collection of duty and for purpose of classification of goods the Board may issue directions allocating certain types of works to certain Officers or classes of Officers. The Circulars relied upon are, therefore, nothing more than administrative directions allocating various types of works to various classes of Officers. These administrative directions cannot take away jurisdiction vested in a Central Excise Officer under the Act. At the highest all that can be said is Central Excise Officers, as a matter of propriety, must follow the directions and only deal with the work which has been allotted to them by virtue of these Circulars. But if an Officer still issues a notice or adjudicates contrary to the Circulars it would not be a ground for holding that he had no jurisdiction to issue the show cause ....
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....how cause notices and orders under section 74 of the CGST Act. Accordingly, the following entry is hereby being added to the item at Sl. No. 4 of the Table on page number 3 of Circular No. 3/3/2017-GST dated 5th July, 2017, namely:- Sl. No. Designation of the officer Functions under Section of the Central Goods and Services Tax Act, 2017 or the rules made thereunder (1) (2) (3) 4. Superintendent of Central Tax viii(a). Sub-sections (1), (2), (3), (5), (6), (7), (9) and (10) of Section 74 3. Further, in light of sub-section (2) of section 5 of the CGST Act, whereby an officer of central tax may exercise the powers and discharge the duties conferred or imposed under the CGST Act on any other officer of central tax who is subordinate to him, the following entry is hereby removed from the Table on page number 2 of Circular No. 3/3/2017- GST dated 5th July, 2017:- Sl. No. Designation of the officer Functions under Section of the Central Goods and Services Tax Act, 2017 or the rules made thereunder (1) (2) (3) 3. Deputy or Assistant Commissioner of Central Tax vi. Sub-sections (1), (2), (3), (5), (6), (7), (9) and (10) ....
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....s Not exceeding Rs. 20 lakhs 2. Deputy or Assistant Commissioner of Central Tax Above Rs. 10 lakhs and not exceeding Rs. 1 crore Above Rs. 20 lakhs and not exceeding Rs. 2 crores Above Rs. 20 lakhs and not exceeding Rs. 2 crores 3. Additional or Joint Commissioner of Central Tax Above Rs. 1 crore without any limit Above Rs. 2 crores without any limit Above Rs. 2 crores without any limit 6. The central tax officers of Audit Commissionerates and Directorate General of Goods and Services Tax Intelligence (hereinafter referred to as "DGGSTI") shall exercise the powers only to issue show cause notices. A show cause notice issued by them shall be adjudicated by the competent central tax officer of the Executive Commissionerate in whose jurisdiction the noticee is registered. In case there are more than one noticees mentioned in the show cause notice having their principal places of business falling in multiple Commissionerates, the show cause notice shall be adjudicated by the competent central tax officer in whose jurisdiction, the principal place of business of the noticee from whom the highest demand of central tax and/or integrated tax (inclu....