TaxTMI 
TaxTMI 
2022 (7) TMI 231
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....common order, all the below mentioned 19 cases are being disposed. Since the 19 cases are being disposed by this common order, it is divided into 7 Parts as follows:- Part No. CONTENT Paragraphs I Introduction. 1-15 II Text of the impugned Notice No.22/2014- S.T. dated 16.09.2014 16 & 17 III Category -1 18 - 44 IV Category- 2 45 - 116 V Category- 3 117 - 129 VI Discussion. 130 - 201 VII Conclusion 202 -208 PART I - INTRODUCTION There are three categories of Writ Petitions. They are categorized as follows:- Category No.1: Writ Petitions have been filed against the impugned Notification No.22/2014- ST, dated 16.09.2014 issued by the Central Board of Excise and Customs under power conferred by clause (b) of section 2 of the Central Excise Act, 1944 (1 of 1944), read with Clause (55) of Section 65B of the Finance Act, 1994 (32 of 1994), Rule 3 of the Central Excise Rules, 2002 and Rule 3 of the Service Tax Rules, 1994. Category No.2 :Writ Petitions have been filed against the impugned Show Cause Notices (SCNs) issued by the Additional Director General, Directorate of GST Intelligence of the ....
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....EF2 (Impugned Notice / SCN) received on 03 November 2020 issued by the second respondent Additional Director General, Directorate General of Goods and Service Tax Intelligence, Ludhiana Zonal Unit and quash the same 9 17941/2020 Chennai Super Kings For issuance of a Writ of Certiorari, to call for the records of the first respondent Additional Director General, Directorate General of GST Intelligence, Ludhiana Zonal Unit relating to show cause notice bearing number F.No.IV(6)LdZU/ST/05/2020- 21/1961, dated 23.10.2020 and quash the same. 10 12853/2020 M/s.Redington (India) Limited For issuance of Writ of Certiorari, to call for the records of the respondent Principal Additional Director General, Director General of Goods and Services Tax Intelligence, Chennai Zonal Unit relating to issuance of the Show Cause Notice dated 30.07.2020 bearing reference F.No.INV / DGGI / CZU / ST / 98 / 2019 / 5769 and quash the same. 11 14039/2021 IL & FS Tamil Nadu Power Corporation Ltd. For issuance of Writ of Certiorari, to call for the records relating to the Show Cause Notice No.02/2021-ST dated 01.03.2021 issued by the first respondent Additional Director Gener....
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.....08.2021 passed by the thiird respondent Joint Commissioner in F.No.R-114 / 2010 -CBS, pursuant to the Demand cum Show Cause Notice dated 30.12.2020 issued by the second respondent Additional Director. 19 17938/2021 Qualities Medical Group Private Limited For issuance of a Writ of Certiorari, to call for the records relating to the impugned Order-in-Original No.21/ 2021 - JC dated 23.06.2021 issued by the fourth respondent Joint Commissioner confirming the demands proposed in Show Cause Notice No.64/2019-ST dated 13.11.2019 issued by the first respondent Joint Director and quash the same. 7. Challenges to the impugned Show Cause Notices and Ordersin- Original in Category Nos.2 & 3 are primordially on the ground that the Additional Director General, Directorate of GST Intelligence (Formerly Additional Director General of Central Excise Intelligence) in the respective Zonal Units and the Principal Additional Director General, Directorate of GST Intelligence, Chennai Zonal Unit (Formerly Principal Additional Director General of Central Excise Intelligence) and the Additional Director General, Directorate of GST Intelligence (Hqrs.), New Delhi (Formerly the Additional Di....
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....rity in the hierarchy of the appellate authorities prescribed under the Finance Act, 1994 read with Central Excise Act, 1944. 15. Therefore, I shall first deal with the challenge to the impugned Notification No.22/2014, dated 16.09.2014 issued by the Central Board of Excise & Customs. PART - II 16. The text of the impugned No.22/2014-ST dated 16.09.2014 of the Central Board of Excise & Customs is reproduced below:- [TO BE PUBLISHED IN THE GAZETTE OF INDIA, EXTRAORDINARY, PART II, SECTION 3, SUB-SECTION (i)] GOVERNMENT OF INDIA MINISTRY OF FINANCE DEPARTMENT OF REVENUE CENTRAL BOARD OF EXCISE AND CUSTOMS NOTIFICATION No. 22/2014-SERVICE TAX New Delhi, the 16th September, 2014 25 Bhadrapada 1936 Saka G.S.R 650 (E).In exercise of the powers conferred by clause (b) of section 2 of the Central Excise Act, 1944 (1 of 1944), read with clause (55) of section 65B of the Finance Act, 1994 (32 of 1994), rule 3 of the Central Excise Rules, 2002 and rule 3 of the Service Tax Rules, 1994 and in supersession of the notification No. 46/98-SERVICE TAX, dated the 28th January,1998, published vide number G.S.R. 59(E), dated the 28th January, 1998 and No. 7/2004-CE, da....
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.... V of the Finance Act, 1994 and Rules made thereunder, throughout the territory of India, as are exercisable by a Central Excise Officer of the corresponding rank as specified in column 3 to the said Notification. PART III - CATEGORY 1 18. I shall briefly narrate facts and other submissions made on jurisdiction to issue Show Cause Notices by the officers from the Directorate General of Central Excise Intelligence (presently Directorate General of Central Tax Intelligence) in the light of Circular No.1076/02/2020-Cx, dated 19.11.2020. 19. It is submitted that the impugned Notification No.22/2014-S.T. dated 16.09.2014 issued by the Central Board of Indirect Taxes & Customs, is inter alia ultra vires Rule 3 of Service Tax Rules, 1994. 20. It is submitted that the impugned Notification No.22/2014-S.T. dated 16.09.2014 is the only source of authority which empowers officers belonging to the Director General of Goods and Service Tax Intelligence(DGGI) to issue show-cause notices (SCNs) and adjudicate service tax demands under Section 73 of the Finance Act, 1994. 21. It is submitted that there are no other Notification under Rule 3 of Service Tax Rules, 1994 that seeks to c....
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....n process. 30. In this connection, the learned counsel for the petitioner referred to the decision of the Kerala High Court in P. SivaramakrishnanVs. State of Kerala, 1994 (5) TMI 24, wherein, the Hon'ble Kerala High Court undertook a detailed discussion of the expression 'local limits' in paragraphs 26-35 and noted in paragraph 33 that when a legislation applicable to the entire State speaks of a locality or local limit, it clearly signifies that it does not refer to the entire State, but to a defined part thereof. 31. It was therefore submitted that in paragraph 41 that Notifications it was concluded power assigned to the Intelligence officer, Kottayam was with jurisdiction throughout the State and ultra vires Section 3(2) of the Kerala General Sales Tax Act, 1963. 32. Learned Counsel referred to the decision of the Andhra Pradesh High Court in Balaji Rice Company Vs. CTO, 1983 (4) TMI 243, wherein, the Andhra Pradesh High Court dealt with the expression 'local limits'. Through Paragraphs 31 to 41, it was held that 'local limits' as stipulated in Section 4 of the APGST Act could comprise an area or territory which is part of the state of Andhra Pradesh, but something les....
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....doctrine of 'comity' was enunciated by the Hon'ble Supreme Court in Commissioner of Customs Vs. Sayed Ali, 2011 (265) E.L.T. 17 (S.C.) with respect to Section 28 of the Customs Act, 1962 and Section 28 of the Customs Act, 1962 is similarly phrased to Section 73 of the Finance Act, 1994. The Hon'ble Supreme Court held in paragraph 21 that only those customs officers who are assigned the functions of assessment working under the jurisdictional Collectorate within whose jurisdiction the bills of entry or baggage declarations had been filed and consignments cleared for home consumption, will have the jurisdiction to issue notice under Section 28 of the Customs Act, 1962. 39. It is also submitted that this doctrine was reiterated in Canon India Pvt. Ltd. Vs. Commissioner of Customs, 2021 (376) E.L.T. 3 (S.C.). wherein, in paragraph 12, the Hon'ble Supreme Court adverted to the use of the specific article 'THE' prefacing the words 'proper officer' to hold in paragraph 14 that when the statute directs that "the proper officer" can determine duty not levied/not paid, it does not mean any proper officer but that proper officer alone. 40. It is submitted that this principle of comity i....
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....280) E.L.T. 321 (All.) [Pages 22-33 of the Respondent's Compilation dated 24.08.2021] ?This decision was also rendered in the Central Excise regime, which permits multiple central excise officers to exercise jurisdiction over the same assessee. [Paras 27-28]. Further, this case relied on Duncan Agro (supra), which has already been distinguished above. ?Hence, this decision is not even applicable to resolve the question of whether DGGI officers are 'the proper officers' for issuance of show cause notices under Section 73 of the Finance Act, 1994. 3. National Building Construction Co vs Uol2019 (20) GSTL 515 (Del) [Pages 34-49 of the Respondent's Compilation dated 24.08.2021] ?While the decision in National Building Construction Co. was under the service tax regime, the Petition laid a limited challenge to a Show Cause notice but did not raise any challenge to the NN 22/2014. It was in this specific context that the Hon'ble Delhi High Court held that there was no bar on the Board from conferring pan- India jurisdiction. [Para 43] ?The Hon'ble High Court did not consider the gamut of arguments placed on the NN 22/2014 being ultra vires Rule 3 of the STR. ?The deci....
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.... to the Closure Report of the Audit Department and therefore on this score also the Show Cause Notice is bad. That apart, the learned senior counsel for the petitioner submits that the report of the comptroller of Auditor General of India examined the issue arising out the business franchise under the IPL matches conducted by the Board of Control for Cricket in India (BCCI) and that in the case of other franchise namely M/s.Royal Challengers Sports Private Limited, M/s.Entertainment Network India private limited (Mumbai ST-III), M/s.Knight Riders Sports Private Limited (Mumbai ST-IV) and M/s.Wizcraft International Entertainment Limited (Mumbai ST-VI), the proposal was dropped. 47. It is submitted that once the Jurisdictional Officer has attached/adjudicated, it is not open for the second respondent to sit in appeal over the same by issuing the impugned Show Cause Notice and therefore on this score also, the impugned proposal in the Show Cause Notice is liable to be dropped. The learned senior counsel also submitted that on the same ground, there is no case made out for invoking extended period of limitation. A reference was made to the following written submissions:- "1....
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....arger period cannot be invoked where the issue involved interpretation of law and where audit by proper officer is concluded." 48. On merits, the learned senior counsel submitted that the petitioner had treated the service as a "sponsorship service" and since the recipient of service have paid tax on reverse charge basis the petitioner cannot be fastened the liability under Rule 6(3) of the CENVAT Rules, 2004. 49. The learned senior counsel has referred to the decision of the Hon'ble Supreme Court in the following cases:- "i. Siemens Limited Vs. State of Maharashtra, 2007 (1) CTC 844. ii. Oryx Fisheries Limited Vs. Union of India, 2010 (13) SCC 427." 50. Mrs.R.Hemalatha, learned Senior Standing Counsel for the fifth respondent drew attention to the decision of the Hon'ble Supreme Court in Commissioner of Income Tax, Gujarat Vs Vijaybhia N.Chandrani, 2013 (35) Taxmann.com 580 (SC) wherein the Hon'ble Supreme Court set aside the order of the High Court and remitted the case back to the respondents, by directing the assessee to participate in the Show Cause Proceedings. 51. Mr.V.Sundareswaran, learned Senior Panel Counsel for the first to four....
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....ncome. 58. It is submitted that definition of service in Section 65B(44) of the Finance Act, 1994 makes it clear that there was no provision of service. It is therefore submitted that the impugned Show Cause Notice is liable to be quashed. 59. The learned senior counsel submits that the respondents have filed two counters in this writ petition dated 05.01.2020 and on 08.03.2021. After there was exchange of further pleadings, it is submitted that a regular audit was conducted by the Jurisdictional Officer in terms of Rule 5(A) of the Service Tax Rules, 1994 and under the scheme of the Finance Act, 1994, there is only the scope for a special audit under Section 72(A) of the Finance Act, 1994. 60. It is therefore submitted that it is not open for the Department to re-look on the issue once the issue had attained finality. It is further submitted that there is no allegation of suppression of facts in the impugned Show Cause Notice though in Paragraph (16) of the impugned Show Cause Notice, the reasons for invoking extended period of limitation has been given. 61. It is submitted that there should be a positive act for invoking extended period of limitation and a notice shou....
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....rchase and sale of goods. 67. Petitioner in order to promote sales announces discount/rebate, these offers are part of the trading activities. The rebate/discount are paid either by way of credit notes or through bank transfers. Petitioner for sake of convenience had accounted rebates/discounts under separate accounting head as 'Other Income'. 68. The Service Tax Department had audited the books of accounts of the petitioner from 2013- June 2017 for trading of products from the vendors. 69. The petitioner received a Show Cause Notice dated 30.07.2020 from the respondent alleging that the petitioner company has violated certain provisions of Chapter V of the Finance Act. The Reason stated by the respondent was the service provided by the petitioner is taxable under the finance Act 1994. 70. The Learned Counsel for the Petitioner submits that the concept of service tax was introduced in the year 1994 on various specified services where each service was defined under the finance act 1994. However the concept of levy of service tax was changed with effect from 01.07.2012, from taxing the individual service to negative list of service where all services, except the services ....
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....tted that the relationship the petitioner had with vendor is mere seller-purchaser of the products, there is no service carried out for the vendor. 75. Opposing the prayer the learned counsel for the respondent submits that the respondent while scrutinising the documents of the petitioner at the time of the investigation noticed that the petitioner has agreed to do an activity in the form of promoting the sales of the product of their vendors in general and specific products of their supply in particular against consideration in name of rebates thereby has rendered 'service' to their vendors. 76. Hence the amount received by it in the name of rebate is extra incentive received for the efforts put forth by it for additional purchase/sales which is also evident from the fact that the services related to sales promotion are provided against consideration in the form of such rebates. 77. The learned counsel for the petitioner further submits that the rebate income earned by the petitioner has no relation with the sale and purchase prices in as much as there is no direct and indirect effect shown in the account of purchase/sale in the books of accounts of the petitioner towards....
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....urisdiction which the issued has been issued the petitioner by an officer without jurisdiction and that the respondent has wrongly proceeded to invoke the extended period of limitation under proviso to Section 73 of the Finance Act, 1994. 85. The learned counsel for the petitioner submits that the demand proposed and the impugned show cause notice is above 50 lakhs for a sum of Rs.92,55,56,798/-. It is therefore submitted that the impugned show cause notice is contrary to circular bearing reference No.1053/2/2017-CX dated 10.03.2017 and 19.11.2020 and therefore is liable to be quashed. 86. In this connection, a reference was made the following two decision of this Court in Tube Investment of India Limited Vs. Union of India 2018 (16) GSTL 376 (Mad) and Hitachi Power Europe Europe Vs. Income Tax Settlement 2019 SCC Online 4005 (Mad) and Amadeus India Pvt.Ltd Vs. Principal Commissioner 2019 (25) GSTL 486 (Del) 8437. 87. The learned counsel for the petitioner submitted that the amount which was received by the petitioner towards capacity charges under the power purchase agreement is in the nature of the liquidated damages which is a compensation for breach of contract and the....
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.... in the classification issue. 95. It is therefore submitted that the petitioner has an alternate remedy and therefore the writ petition is liable to be dismissed. 96. Finally, the learned counsel for the respondent has drawn attention to the impugned show cause notice to justify the invocation for extended period of limitation. He also relied upon the decision of the Hon'ble Supreme Court in the case of Union of India Vs. Postal Container Transporters Association 2019 22 GSTL 481. The Hon'ble Supreme Court held that unless the show cause notice was without jurisdiction the Court cannot interfered at the show cause proceedings. W.P.No.17385 of 2021 [M/s.NLC India Limited Vs. Additional Director General, Directorate of GST Intelligence] 97. The petitioner has challenged the impugned show cause notice dated 30.12.2020 bearing reference Show Cause-cum-demand notice No.63/2020-ST dated 30.12.2020 demand has been proposed for the period between 01.10.2014 to 31.06.2017. 98. The demand in the present show cause notice pertains to alleged provisions of declared service within the meaning of Section 66E(e) read with Section 65B(22) of the Finance Act, 1944. 99. The....
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.... the afore-stated Circular, it is clear that the Board had made issuance of Pre-Show Cause Notice consultation mandatory for the Principal Commissioner/Commissioner prior to the issuance of Show-Cause Notice in cases involving the demands of duty above Rs.50,00,00,000/- and that such consultation was to be done by the adjudicating authority with the assessee as an important step towards the trade facilitation and for promoting necessary compliance, as also to reduce the necessity of issuing Show Cause Notice. Despite such mandatory requirement of the Pre- Show Cause Notice consultation at the instance of the respondent authority, in utter disregard of the said mandate, and without considering the laudable object behind issuing such circular, the respondents issued the impugned Pre-Show Cause Notice consultation dated 12.04.2019 delivering the same to the petitioner assessee at 13.55 hours and calling upon them to remain present before the respondent No.2 at 16.00 hours. The petitioners having requested for reasonable time for the effective consultation, without considering the said request, the respondent No.2 issued the Pre-Show Cause Notice on the same day i.e., on 12.04.2019. Su....
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....ubmitted that the proposal in the impugned Show Cause Notice is liable to be quashed and prays for allowing the writ petitions. 109. The learned counsel for the petitioners further submitted that even otherwise there is no case made out for invoking extended period of limitation under proviso to Section 73 of the Finance Act, 1994. 110. The learned counsel for the petitioners has also relied on the decision of the Hon'ble Division Bench of this Court in W.A.No.493 of 2021 dated 18.02.2021, wherein in Paragraph 7, this Court held as follows:- "7. Therefore, there are certain broad parameters, within which, the Court has to exercise its jurisdiction under Article 226 of The Constitution of India, which read as hereunder : (i) if there is unfairness in the action of the Statutory Authority; (ii) if there is unreasonableness in the action of the Statutory Authority; (iii) if perversity writs large in the action taken by the Authority; (iv)if the Authority lacks jurisdiction to decide the issue and (v) if there has been violation of the principles of natural justice, the Court will step in and exercise its jurisdiction unde....
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.....10.2021 demanding service tax for alleged in demand for service tax after referring for service within the meaning of 66 E(e) and 65B(22) of the Finance Act. PART V - CATEGORY- 3 W.P.No.24680 of 2021 [M/s.G.K. Shipping Services Pvt. Ltd. Vs. Union of India] 117. The learned counsel for the petitioner submits that if the connected W.P.No.24677 of 2021 is dismissed, the petitioner may be given liberty to work out the alternate remedy before the Appellate Commissioner. W.P.No.17938 of 2021 [Qualitas Medical Group Private Limited Vs. Joint Director, Directorate of GST Intelligence. ] 118. The petitioner has challenged the impugned Order-in-Original No.21/2021-JC dated 23.06.2021 passed by the fourth respondent pursuant to the Show Cause Notice dated 13.11.2019 bearing Ref.No.64/2019-ST issued by the first respondent. 119. The impugned Order-in-Original which confirms the demand proposed in the Show Cause Notice dated 13.11.2019 of the first respondent. It covers the period between 01.04.2015 and 30.06.2017. The details of the demand proposed in the Show Cause Notice is as follows:- Sl. Particulars of demand Period Service Tax (INR) 1. Differential S....
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....ders, instructions or directions shall be issued- (a) so as to require any Central Excise Officer to make a particular assessment or to dispose of a particular case in a particular manner; or (b) so as to interfere with the discretion of the 2[Commissioner of Central Excise (Appeals)] in the exercise of his appellate functions." 124. The circular issued by the Central Board of Direct Taxes fell for consideration before the Hon'ble Supreme Court in Pahwa Chemicals Private Limited Vs Commissioner of Central Excise, Delhi, 2005 (181) E.L.T. 339 (S.C). The learned counsel for the petitioner submits that during the material period which fell for consideration in Pahwa Chemicals Private Limited case (referred to supra), Section 11A of the Central Excise Act had been amended, as a result of which, only the Central Excise Officer chould issue Show Cause Notice. It is submitted that the Hon'ble Supreme Court has concluded the circular issued by the Central Board of Indirect Taxes in 1997 holding that only the Commissioner should issue Show Cause Notice without limitation of period, was contrary to the provisions of the Act. 125. In this connection, a referenc....
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....is submitted that the circular dated 10.03.2017 which enjoins the respondents to do a pre-consultation wherever the demand is more than 50 lakhs is in consonance amended Section 37B with effect from 14.05.2017, Section 144 of the Finance Act, 2016 and therefore the decision of the Hon'ble Supreme Court in Pahwa Chemicals Private Limited case (referred to supra) which was later followed in Aeon's Construction Products Limited Vs Commissioner of Central Excise, Chennai, 2005 (184) E.L.T.120 (S.C.) is to be distinguished. 127. The learned Senior Standing Counsel for the fifth respondent has referred to the following decisions:- i. The Assistant Commissioner of State Tax and others Vs M/s.Commercial Steel Limited, 2021 SCC Online SC 884. ii. Magadh Sugar & Energy Limited Vs State of Bihar and others, 2021 SCC Online SC 801. 128. A reference was made to Paragraph 11 in Commercial Steel Limited case (referred to supra), which reads as under:- "11. The respondent had a statutory remedy under Section 107. Instead of availing of the remedy, the respondent instituted a petition under Article 226. The existence of an alternate remedy is not an absolute....
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.... ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law; (v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and (vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with." PART VI - DISCUSSION 130. Chapter V of the Finance Act, 1994, (hereinafter referred to as "Finance Act, 1994) contains the provisions relating to levy and collection of service tax. Chapter V of the Finance Act, 1994 (hereinafter referred to as "Finance Act, 1994) was amended during the successive Finance Acts till the Finance Act, 2017. 131. Steadily the number of services increa....
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....n( 2) of section 9A, 9AA, 9B, 9C, 9D, 9E, 11B, 11BB, 11C, 12, 12A, 12B, 12C, 12D, 12E, 14, 15, 15A, 15B, 31, 32, 32A to 32P, 33A, 35EE, 34A, 35F, 35FF, to 35O (both inclusive), 35Q, 35R, 36, 36A, 36B, 37A, 37B, 37C, 37D, 38A and 40." 138. That apart, by virtue of Section 65(121) of the Finance Act, 1994 till 30.06.2012 (later by virtue of Section 65B(55) of the Finance Act,1994 in view of amendment brought to Chapter V of the Finance Act, 1994 w.e.f 1.7.2012), the words and expression not defined in Chapter V of the Finance Act, 1994 but defined in the Central Excise Act, 1944 or the Rules made thereunder were made to applicable in relation to the service tax as they applied in relation to a duty of excise under the said Act. Both the provisions read identically. They read as under:- Section 65(121) of the Act Section 65B(55) of the Act Words and expressions used but not defined in this Chapter and defined in the Central Excise Act, 1944 (1 of 1944) or the rules made thereunder, shall apply, so far as may be, in relation to service tax as they apply in relation to a duty of excise. 139. Section 73 of the Finance Act, 1994 provides a machinery for recovery of Service ....
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....tax payable has been self-assessed in the return furnished under sub-section (1) of section 70, but not paid either in full or in part, the same shall be recovered along with interest thereon in any of the modes specified in section 87, without service of notice under sub-section (1). (2) The Central Excise Officer shall, after considering the representation, if any, made by the person on whom notice is served under sub-section (1), determine the amount of service tax due from, or erroneously refunded to, such person (not being in excess of the amount specified in the notice) and thereupon such person shall pay the amount so determined : [****] (2A)Where any appellate authority or tribunal or court concludes that the notice issued under the proviso to sub-section (1) is not sustainable for the reason that the charge of,- (a) fraud; or (b) collusion; or (c) wilful misstatement; or (d) suppression of facts; or (e)contravention of any of the provisions of this Chapter or the rules made thereunder with intent to evade payment of service tax, has not been established against the person chargeable with the service ta....
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.... date" means, - (i) in the case of taxable service in respect of which service tax has not been levied or paid or has been short-levied or short-paid - (a) where under the rules made under this Chapter, a periodical return,showing particulars of service tax paid during the period to which the said return relates, is to be filed by an assessee, the date on which such return is so filed; (b) where no periodical 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 service tax is to be paid under this Chapter or the rules made thereunder; (ii) in a case where the service tax is provisionally assessed under this Chapter or the rules made there under, the date of adjustment of the service tax after the final assessment thereof; (iii) in a case where any sum, relating to service tax, has erroneously been refunded, the date of such refund.] 140. The "Central Excise Officers" were given the task to perform the functions under Chapter V of the Finance Act, 1994. It is the "Central Excise Officers" who can issue Show Cause Notice under Section 73 of the....
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....sioner 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 (54 of 1963) with any of the powers of a Central Excise Officer under this Act; (a) ...... (b) ...... (c) [ now the Central Board Indirect Tax and Customs (CBIC)] (for brevity "Board") 147. Under Section 2(b) of the Central Excise Act, 1944, the expression "Central Excise Officer" means the [Principal Chief Commissioner of Central Excise, Chief Commissioner of Central Excise, Principal Commissioner of Central Excise], Commissioner of Central Excise, Commissioner of Central Excise (Appeals), Additional Commissioner of Central Excise, [Joint Commissioner of Central Excise] [Assistant Commissioner of Central Excise or Deputy Commissioner of Central Excise] or any other officer of the Central Excise Departmen....
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....mposed by or under the Act or these rules on any other Central Excise Officer who is subordinate to him. 153. Thus, it is clear that 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 (54 of 1963) with any of the powers of a Central Excise Officer under this Act are "Central Excise Officers". It is the Board which can delineate the Jurisdiction under Rule 3 of the Central Excise Rules, 2002. 154. Such officers may exercise the powers and discharge the duties conferred or imposed by or under the Act or these rules on any other Central Excise Officer who is subordinate to him 155. By virtue of Notification No.38/2001-C.E. (N.T), dated 26.06.2001 issued under Section 2(b) of the Central Excise Act, 1944 read with Rule 3(1) of the Central Excise (No.2) Rules, 2001, the Board appointed several persons as "Central Excise Officers" and invested them with all powers of an officer of "Central Excise" of the rank specified in the corresponding entry in column (3) of the Table to the Notification and that such powers being the powers of a Central Excise Officer conferre....
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....d with Section 65(4) of the Finance Act, 1994. 162. By virtue of Notification No.46/98-S.T., dated 28.01.1998, the Director General (Service Tax) was appointed as "Central Excise Officer" and the Board invested with such officer with all the powers to be exercised by him throughout the territory of India as are exercisable by the Chief Commissioner of Central Excise. 163. By virtue of Notification No.38/2001-C.E. (N.T), dated 26.06.2001 issued under Section 2(b) of the Central Excise Act, 1944 read with Rule 3(1) of the Central Excise (No.2) Rules, 2001, the Board appointed several persons as "Central Excise Officers" and invested them with all powers of an officer of "Central Excise" of the rank specified in the corresponding entry in column (3) of the Table to the Notification and that such powers being the powers of a Central Excise Officer conferred under the Act, to be exercised by them throughout the territory of India. 164. Sl.No.1 to Notification No.38/2001-C.E. (N.T), dated 26.06.2001 specifically dealt with the officers of Director General of Central Excise Intelligence. Sl.No.1 of the Table to Notification No.38/2001-C.E. (N.T), dated 26.06.2001 reads as under:-....
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....fter 2017) 169. The Board which is the apex body discharges its tasks by assigned to it with help of its field organizations namely: a. Zones of Customs; b. Zones of Central Excise; c. Commissionerates of Customs d.Commissionerates of Central Excise, e. the Directorates f. Opium and Alkaloid factories under the Central Bureau of Narcotics 170. The Board has several Directorates under it. The Board has constituted following Directorates to help it to achieve its goals in the administration of Union Indirect Taxes:- a. Directorate of Central Excise Intelligence* b. Directorate of Revenue Intelligence c. Directorate of Inspection (Customs and Central Excise) d. Directorate of Housing and Welfare e. Directorate of Vigilance f. Directorate of Systems g. Directorate of Audit h. Directorate of Safeguards i. Directorate of Export Promotion j. Directorate of Service Tax k. Directorate of Valuation l. Directorate of Publicity and Publicity Relations m.Directorate of Organisation and Personnel Management n. Di....
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....le working in the Director General in the grade of Senior Intelligence Officer, will be entitled for special allowance as admissible in terms of Government of India's instructions issued from time. Normally, the deputation is for a period of five years, which is extendable by another two years, subject to willingness of the officer, her/her performance, concurrence of his parent Commissionerate and approval of Competent authority Selected candidate will have to make their own arrangements for residential accommodation at the station of posting. It may be pertinent to mention that the option for deputation in DGGI once exercised cannot be withdrawn under any circumstances. It is requested that the circular may please be brought to the notice of all the formation under your jurisdiction and the application of willing officers be forwarded to this office. While forwarding the names of the willing officer, the following information in respect of them may also be sent for evaluation by this Directorate General:- 1. Complete Bio-Data and willingness of the officer along with history of previous postings; 2. List of cases booked on his own Info....
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....ssionerates/ States including investigation of complicated cases selected by the Directorate or entrusted to it by the Ministry. (g) Having at all time, a complete detailed & up-to-date study of the Taxation Laws and implementation machinery and to have proper appreciation and assessment of possibilities of evasion. (h) Examining and studying the effect and implementation of various tax concessions, exemptions and relaxations in controls and to make recommendations to the Government from time to time, to ensure that they do not become a source of evasion. (i) Maintaining liaison with other Central & State agencies in all matters pertaining to tax evasion. (j) To function as "Regulator" for Gems and Jewellery sector under the framework of Prevention of Money Laundering Act, 2002. Directorate of Central Excise Intelligence (a) To collect, collate and disseminate intelligence relating to evasion of central excise duties. (b) To study the price structure, marketing patterns and clarification of commodities vulnerable to evasion of Central Excise duty; (c) To coordinate action with other departments like income tax etc. in cases involving evasion of central excise d....
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.... of the Notification No.7/2004-C.E. (N.T.), dated 11.03.2004, the officers specified in Column (2) of the Table to the said Notification were appointed as the "Central Excise Officers" and were invested with the powers to be exercised by them "throughout the territory of India" as are exercisable by the Central Excise Officer of the corresponding rank as specified in the Column (3) of the said Table, such powers being the powers of a Central Excise Officer conferred under Chapter V of the Finance Act, 1994. The Table to the said Notification reads as under:- S.No . Designation Jurisdiction 1. Director General, Central Excise Intelligence Chief Commissioner of Central Excise for of India 2. Additional Director, Central Excise Intelligence Commissioner of Central Excise or whole of India 3. Additional Director, Central Excise Intelligence Additional Commissioner of Central Excise for whole of India 4. Joint Director, Central Excise Intelligence Joint Commissioner of Central Excise for whole of India 5. Deputy Director, Central Excise Intelligence Deputy Commissioner of Central Excise for whole of India 6. Assistant Director,....
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.... Finance (Department of Revenue) No.16/2007-S.T., dated 19.04.2007 [G.S.R.No.303(E) dated 19.04.2007, shall be exercised by the Chief Commissioner of Central Excise for the purpose of assigning the adjudication of cases, under the provisions of the said Finance Act or Rules made thereunder, within his jurisdiction. 185. Similarly, similar powers were vested with the officers of Directorate General of Audit, Customs and Central Excise vide Notification No.28/2008-C.E. (N.T.) dated 05.06.2008 by the Board in exercise of the powers conferred by Section 2(b) of the Central Excise Act, 1944 read with Rule 3(1) and (2) of the Central Excise Rules, 2002. 186. Similar Notifications have been issued, specifically, by Notification No.14/2017 - C.E. (N.T.), dated 09.06.2017 issued in exercise of powers conferred by Section 37A of the Central Excise Act, 1944 read with Section 83 of the Finance Act, 1994 and in supersession of the Notifications of the Government of India in the Ministry of Finance, Department of Revenue, Central Board of Excise and Customs vide Notification No.11/2007-Central Excise (N.T.) dated 01.03.2009, No.16/2007-Service Tax dated 19.04.2007 and No.6/2009 - Service Tax....
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....r Section 73 of Chapter V of the Finance Act, 1994 which prescribes a machinery for recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded. 192. As mentioned above, under Rule 3 of the Service Tax Rules, 1994, the Board can appoint any other officer to exercise power within the "local limits". However, that would not mean that the officers of "Directorate of Central Excise Intelligence (DGCEI) [presently The Directorate of GST Intelligence]" who are already "Central Excise Officers" under Notification No.38/2001-C.E. (N.T), dated 26.06.2001 for whole of India cannot exercise power pan India. Notification No.22/2014-ST dated 6.09.2014 is to be read in conjunction with Notification No.38/2001- C.E. (N.T), dated 26.06.2001. 193. Therefore, the 2nd argument advanced on behalf of the petitioners as far as jurisdiction to issue Show Cause Notice cannot be accepted. 194. Therefore, the argument of some of the counsel for the petitioners that the officer of Directorate of Central Excise Intelligence (DGCEI) [presently The Directorate of GST Intelligence] are not "Central Excise Officer" and cannot exercise function Pan India cannot be acce....
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....Act, 1994. 9. The aforementioned Master Circular is intended to only facilitate the parties to come forward to pay the amount so that the department is not burdened with show cause proceedings. However, that by itself would not mean impugned show cause proceedings initiated against the petitioner would be either illegal or without jurisdiction. The show cause proceedings initiated under Section 73 of the Finance Act, 1994 seeking to demand tax which was allegedly not paid, cannot be allowed to be scuttled in the light of the above circular. In any event circulars are not binding on the Courts as per the decision of the Hon'ble Supreme Court in COMMISSIONER OF CENTRAL EXCISE Vs. RATTAN MELTING AND WIRE INDUSTRIES (2008) 231 ELT 22 SC. Therefore, I do not find any merits in the present writ petition as the impugned show cause notice has been issued a competent authority namely The Commissioner, Office of the Commissioner of GST and Central Excise, Chennai Outer Commissionerate under the Finance Act, 1994. The respective noticees can file their reply to the impugned show cause notice and meet out the allegations on merits. 10. I am therefore not inclined to inter....