TaxTMI 
TaxTMI 
2022 (7) TMI 231
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....d 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 respective Zonal Units and Principal Additional Director General, Directorate of GST Intelligence, Che....
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....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 General, Directorate of GST Intelligence, Coimbatore Zonal Unit and quash the same. 12 17385/2021 M/s.NLC India Limited For issuance of Writ of Certiorari, to call for the records relating to the Show Cause Notice No.63/2020-S....
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....orari, 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 Director General of Central Excise Intelligence), were incompetent to issue the impugned Show Cause Notices to recover the tax allegedly evaded by these petitioners under the provisions of the Finance Act, 1994. Consequently, it is submitted that the impugned Order in Original confirming the demand are....
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....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, dated the 11th March, 2004, published vide number G.S.R 187(E), dated the 11th March, 2004, the Central Board of Excise and Customs hereby appoints the officers in the Directorate General of Audit, Directorate General of Central Excise Intelligence and Directorate General of Service Tax specified in column (2) of the Table below as Centra....
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....ise 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 confer powers on these officers. 22. It is submitted that the power to issue the impugned Notification, as well as the power to appoint jurisdictional 'Central Excise Officers' emanate from Rule 3 of the Service Tax Rules, 1994, which empowers Central Board of Indirect Taxes & Customs to appoint such 'Central Excise Officers' as it thinks fit for exercising the powers under the Act within such 'local limits' ....
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....t 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 less than the whole of the territory of the State of Andhra Pradesh. 33. It was held in paragraphs 32 and 41 that extending territorial jurisdiction of an officer to the whole of the State was ultra vires the powers conferred by the Statute. A statutory amendment was then executed for delimiting jurisdiction. 34. It was further submitted that in P.Sivaramakrishan's cited supra, the Kerala High Court were moved to hold that 'local l....
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....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 is enshrined in Section 73 of the Finance Act, 1994 which empowers "the" Central Excise Officer to issue a show cause notice. It is further submitted that furthermore, Section 73(2) contemplates that the adjudication of the show cause notice shall be done by "the" same Central Excise Officer who has issued the show cause notice under Section 73(1) and thus, the Act contemplates not "any" Central Excise Officer but a specific and particular Central....
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....r 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 decision in NBCC had occasion to consider the ratio in Balaji Rice Mills and refrained from applying it for the sole reason that the decision in Balaji Rice Mills was rendered under a different enactment [Para 46]. ?In CCE vs Jawahar Mills Ltd. -2001 (132) E.L.T. 3 (S.C.), the Hon'ble Supreme Court dismissed the revenue's plea that sales tax decisions and income tax decisions should not apply to central excise disputes by holding that the real question is that of the principle laid down by ....
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....T-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. The petitioner operates an Indian Premier League (IPL) franchise by the name Sunrises Hyderabad "SRH". The petitioner receives sponsorship income from various business in relation to his franchise on which the recipient of the service has paid Service Tax under reverse charge mechanism. 2. Respondent No.2 has issued the impugned Show Cause Notice alleging that the petitioner has not reversed CENVAT credit under the service tax regime to the proportion of sponsorship income earned by it. The objections have been raised presumab....
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....e 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 fourth respondents on the other hand relied on the following decisions:- " i. Commissioner of Central Excise, Bangalore Vs Brindavan Beverages (P) Limited, 2007 (213) E.L.T. 487 (S.C.) ii. R.R.Financial Consultants Limited Vs Union of India, 2014 (33) S.T.R. 12 (Del.) iii.Abhishek Mundhra Vs Additional Director General, Directorate General of Revenue Intelligence, Chennai, 2015 (318) E.L.T. 245 (Mad.) iv. Additional Director, Directorate of Revenue Intelligence, Chennai Vs M.Rathakrishnan, 2017 (354) E.L.T. 483 (Mad.) v. Karnataka Power Transmission Corporation Limite....
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....he 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 should spell out clearly the reasons as to how there was a case made out suppression of facts. In this connection, the learned senior counsel referred to the following decision of the Hon'ble Supreme Court :- " i. Siemens Limited Vs State of Maharashtra, 2007 (1) CTC 844. ii. Oryx Fisheries Limited Vs Union of India, 2010 (13) SCC 427." 62. The learned senior counsel further submitted that in the second counter for the first time, the respondents have alluded to the alleged failure on the part of the petitioner to furnish a copy of the contract entered with gulf oil for the year 2015. It is submitted that the petitioner ....
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....ason 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 listed under the negative list were levied to service tax 71. The term Service and taxable Service have been defined under Section 2 (44) and Section 2(51) of the finance Act 1994. The Sections reads as under;- Section 2(44) : "Service" means any activity carried out by a person for another for consideration, and includes a declared service, but shall not include (a) an activity which constitutes merely - (1) A Transfer of title in goods or immovable property by way of sale, gift or in any other manner; or (ii) Such transfer, delivery or supply of any goods which is deemed to be a sale within the meaning of clause (29A) of article 366 of the Constitution: (111) A transaction in mo....
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....om 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 these income. Hence, it appears that such amounts earned in the name of rebates are towards sales promotion of the products of the petitioner. 78. Further the learned counsel for the respondent states that the petitioner has failed to discharge their service tax liability on "ocean freight" involved on the imports made by them during the period 23.04.2017 to 30.06.2017. The issue was raised by the officers of DGGI,CZU. Though they have paid the service tax on Ocean Freight along with the interest but have not paid the mandatory penalty of 15%. 79. The learned counsel for the respondent further states that the allegations made by the petitioner with regard to the periodical audit for the period April 2013 - June 2017 was conducted and certified that there are no discr....
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..... 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 therefore cannot come within the purview of declared services under Section 66E(e) of the Finance Act, 1994. 88. The learned counsel for the petitioner submits that the issue also was recently considered by the larger bench of the Tribunal in view of the conflicting views on the same point and the larger bench in its order in the case of Commissioner of Excise Vs. Repco Home Finance 2020 SCC online CESTAT 114. 89. The learned counsel for the petitioner submits that the power purchase agreement is single contract under which the payments have been made and the payments towards capacity charges i.e, towards damages for not taking agreed quantity of units is also towards sale of electricity and since the activity is exempt under TNVAT Act, 2006. The petitioner is not paid VAT. 90. The learned ....
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.... 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 learned counsel for the petitioner submits that the petitioner is a 'Navratna Company' and therefore as per the decision of this Court, invocation of the extended period of limitation against a Navratna Company cannot be countenanced and therefore the impugned show cause notice has to go. W.P.No.17498 of 2021 [M/s.NLC Tamil Nadu Power Limited Vs. Additional Director General, Directorate of GST Intelligence] 100. The petitioner has challenged the impugned Show Cause - cum - Demand Notice No.01/2021-ST, dated 18.02.2021 demanding service tax for alleged in demand for service tax after referring for service within the meaning of 66E(e) and 65B(22) of the Finance Act. W.P.Nos.18490, 18492 & 18496 of 2021 [M/s.Sify Technologies Limited Vs. Additional Director General, Directorate of GST Intelligence (Hqrs.)....
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....ering 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. Such a high-handed action on the part of the respondent No.2, not only deserves to be deprecated but to be seriously viewed." 105. The learned counsel for the petitioners has reiterated the same submission in Pahwa Chemicals Private Limited Vs Commissioner of Central Excise, Delhi, 2005 (181) E.L.T. 339 (S.C). It is therefore submitted that the impugned Show Cause Notice has to go. 106. That apart, the learned counsel for the petitioners submits that the impugned Show Cause Notice is contrary to the Notification No.22/2014-ST dated 16.09.2014 and therefore on this score also the impugned Show Cause Notice has to be quashed as it has been issued without jurisdiction and also not issued by the competent officer contemplated under the provisions of the Finance Act, 1994. 107. On merits, the learned counsel for the petitioners submits ....
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....n 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 under Article 226 of The Constitution of India." 111. Opposing the prayer in these writ petitions, the learned Senior Panel Counsel for the first to fourth respondents submits that the issue pertains to classification of service as to whether the service provided by the petitioners is Income Tax Service or Online Information Database Access and Retrieval Service as defined in Rule 2(l) of the Place of provision of Service Rules, 2012 read with Rule 2(1)(ccd) of the Service Tax Rules, 1994. 112. In this connection, the learned senior panel counsel for the first to fourth respondents has placed reliance on the decision of the Hon'ble Supreme Court in Union of India and others Vs Coastal Container Transporters Association and others, (2019) 20 SCC 446. 113. The learned senior panel counsel for first to fourth respondents further submits that when the statements/submissions were recorded....
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....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 Service tax liability consequent to denial of exemption availed for health-care Differential Service tax liability consequent to denial of exemption availed for health-care services under Notification No.25/2012-S.T dated 20.06.2012. 01.04.2015 - 30.06.2017 80,49,959 2. Service tax liable to be paid under reverse charge for FWCMS remote systems received from Bestinet, Malaysia. 01.04.2015- 30.06.2017 21,20,573 Total Service Tax Demanded (INR) 01.04.2015- 30.06.2017 1,01,70,532 120. The learned counsel for the petitioner submits that the impugned order is unsustainable as the Show Cause Notice has been issued by an Officer without jurisdiction. In this connection, already a writ petition has been filed and therefore reiterates that the demand has to go. The learned counsel for the petitioner states that the decision of this Court taking a different view in W.P.No.20969 of 2021 dated 28.01.2022 can be dist....
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....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 reference was made in Paragraph 13 from the said order which reads as under:- "13. In order to consider the powers of the Board one needs to see certain provisions of the Act. Section 2(b) defines the "Central Excise Officer" and it is mentioned therein that any Officer of the Central Excise Department or any person who has been invested by the Board with any of the powers of the Central Excise Officer would be a Central Excise Officer. Thus, the Board has power to invest any Central Excise Officer or any other Officer with powers of Central Excise Officer. By virtue of Section 37B the Board can issue orders, instructions or directions to the Central Excise Officers and such Officers must follow such orders, instructions or directions of the Board. However, these directions can only be for the purpose of uniformity in the classification of excisable goods or with respect to levy of duties of excise on such goods. It is thus clear that the Board has no power to issue instructio....
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....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 bar to the maintainability of a writ petition under Article 226 of the Constitution. But a writ petition can be entertained in exceptional circumstances where there is: (i) a breach of fundamental rights; (ii) a violation of the principles of natural justice; (iii) an excess of jurisdiction; or (iv) a challenge to the vires of the statute or delegated legislation." 129. A reference was made to Paragraph 25 in Magadh Sugar & Energy Limited case (referred to supra), which reads as under:- "25. While a High Court would normally not exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternate remedy is available, the existence of an alternate remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies. This principle has been crystallized by this Court in Whirpool Corporation v. Registrar of Trademarks, Mumbai (1998) 8 SCC 1 and HarbanslalSahni v. Indian Oil Corporation Ltd (2003) 2 SCC 107. Recen....
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....essive Finance Acts till the Finance Act, 2017. 131. Steadily the number of services increased and were brought within the purview of service tax net in the successive Finance Acts till the Finance Act, 2017. 132. An important change was brought to the Finance Act, 1994 in Finance Act, 2012. It not only defined in the expression "service" in Section 65 B (44) for the first time but also brought in a concept of "Negative List"and "Declared Services" etc. 133. Practically, any activity by one persons to another for consideration was a services. It included "Declared Services". The definition provided for few exceptions. Those activity were outside the service tax net in view of the definition of the "service" in Section 653(44) of the Act. The services in the negative list were not liable to service tax. Similarly, those services specified under notifications issued under sub-section (1) of section 93 of the Finance Act, 1994 were exempted from payment of service tax. 134. From 2004, the central exercise duties/additional duty of excise payable under the Central Excise Act, 1944/ Customs Tariff Act, 1975 on"inputs " and on tax paid on "input services" under the provisions of the ....
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....e Act, 1994 provides a machinery for recovery of Service Tax not levied or paid or short-levied or short-paid or erroneously refunded. During the period in dispute in these writ petitions Section 73 of the Finance Act, 1994 reads as under:- Section 73:Recovery of service tax not levied or paid or short-levied or short-paid or erroneously refunded. - 73.(1)Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, Central Excise Officer may, within thirty months from the relevant date, serve notice on the person chargeable with the service tax which has not been levied or paid or which has been short-levied or short-paid or the person to whom such tax refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice: Provided where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded by reason of - (a) fraud; or (b) collusion; or (c) wilful mis-statement; or (d) suppression of facts; or (e) contravention of any of the provisions of this Chapter or of the rules made thereunder with intent to evade payment of ....
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.... the service tax payable by such person for the period of thirty months, as if the notice was issued for the offences for which limitation of thirty months applies under sub-section (1). [ * * * ] (3) Where any service tax has not been levied or paid or has been short-levied or short-paid or erroneously refunded, the person chargeable with the service tax, or the person to whom such tax refund has erroneously been made, may pay the amount of such service tax, chargeable or erroneously refunded, on the basis of his own ascertainment thereof, or on the basis of tax ascertained by a Central Excise Officer before service of notice on him under sub-section (1) in respect of such service tax, and inform the [Central Excise Officer] of such payment in writing, who, on receipt of such information shall not serve any notice under sub-section (1) in respect of the amount so paid : Provided that the Central Excise Officer may determine the amount of short-payment of service tax or erroneously refunded service tax, if any, which in his opinion has not been paid by such person and, then, the Central Excise Officer shall proceed to recover such amount in the manner specified in this sectio....
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.... Cause Notice. 141. In fact, initially, when service tax was introduced, the power to issue Show Cause Notice under Section 73 of the Chapter V of the Finance Act, 1994 was vested only with the Assistant Commissioner of Central Excise / Deputy Commissioner of Central Excise. Later Section 73 was amended and the expression Assistant Commissioner of Central Excise/Deputy Commissioner of Central Excise were substituted with "Central Excise Officers". 142. Reason why Officers form the Central Excise Department were given the task for implementing the provision relating to levy of service tax by the Parliament is because the Board did contemplate creation of a separate cadre of officers employees for implementing the provision of Chapter V of the Finance Act, 1994. 143. It should be also kept in mind, that only three services were introduced in 1994. No Service Commissionerate was also contemplated in 1994 at the time when the Service Tax was first introduced. Various Service were later brought within the service tax net in the successive amendment to the Chapter V of the Finance Act, 1994 as they immensely contributed to the Gross Domestic Product(GDP) of the country. 144. Therefor....
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.... and phrase employed in Section 2(b) of Central Excise Act, 1944 is "means" and "any person (including an officer...........)". 149. The definition of "Central Excise Officer" in Section 2(b) of Central Excise Act, 1944 is expansive. It is clear that apart from officers specified therein from the Central Excise Department, any other officer including an officer of the State Government) invested with any of the powers of a Central Excise Officer this Act by the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963. 150. Thus, by default all the officer of Central Excise Department are "Central Excise Officers". Apart from them such other officers including an officers of the State Government invested by the Board constituted under the Central Boards of Revenue Act, 1963 with any of the power of a Central Excise Officer under the Act are "Central Excise Officers". 151. It is under Rule 3 of the Central Excise Rules, 2002 the Board appoint ssuch person as it thinks fit as "Central Excise officers" to exercise all or any of the powers conferred by or under the Act and Rules. 152. Under Rule 3 of the Central Excise Rules, 2002, the....
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....2001 reads as under:- Sl. No. Officers Rank of officer of Central Excise (1) (2) (3) 1. Officers of the Director General of Central Excise Intelligence, namely:- 1.Director General 2.Additional Director General 3.Additional Director 4.Joint Director 5.Deputy Director or Assistant Director 6.Senior Intelligence 7.Intelligence Officer 1.Chief Commissioner 2.Commissioner 3.Additional Commissioner 4.Joint Commissioner 5.Deputy Commissioner or Assistant Commissioner 6.Superintendent 7.Inspector 157. It is the "Central Excise Officer" as defined in Section 2(b) of the central Excise Act, 1944 who can be appointed as the "Central Excise Officers" for the purpose of Rule 3 of the Service Tax Rules, 1944. 158. Under Notification No.38/2001-C.E. (N.T), dated 26.06.2001, the Board, invested the officers mentioned therein with all the powers to be exercised by them throughout the territory of India as an officer of Central Excise of the rank specified in the corresponding entry in column (3) of the said Table, such powers being the powers of a Central Excise Officers conferred under the said Act and rules made thereunder with effect from 1st July, 2001. ....
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....Commissioner 3.Additional Commissioner 4.Joint Commissioner 5.Deputy Commissioner or Assistant Commissioner 6.Superintendent 7.Inspector 165. It is the "Central Excise Officer" as defined in Section 2(b) of the central Excise Act, 1944 who can be appointed as the "Central Excise Officers" for the purpose of Rule 3 of the Service Tax Rules, 1944. 166. Under Notification No.38/2001-C.E. (N.T), dated 26.06.2001 , the Board, invested the officers mentioned therein with all the powers to be exercised by them throughout the territory of India as an officer of Central Excise of the rank specified in the corresponding entry in column (3) of the said Table, such powers being the powers of a Central Excise Officers conferred under the said Act and rules made thereunder with effect from 1st July, 2001. 167. Therefore, without doubt, the officers from the Directorate are "Central Excise Officers" for the purpose of Rule 3 of the Service Tax Rules, 1994 as they have been vested with the powers of "Central Exercise Officers". The Officers of the Directorate of Central Excise Intelligence are empowered to act as " Central Excise Officers" Pan India. 168. As per the Rule 3 of the Service ....
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....he Directorate of GST Intelligence) is one of the Directorate of the Board. 173. Since the Board can invests the powers of a Central Excise Officer on "any persons" including "an officer of the State Government" the officers of the Directorate of Central Excise Intelligence (presently The Directorate of GST Intelligence) are "Central Taxes Officers' for the purpose of Finance Act, 1994. 174. Senior officers from the Central Excise Department are grafted in to the Directorate General of Goods and Service Tax Intelligence (DGGSTI) [formerly the Directorate General of Central Excise intelligence (DGCEI)]. 175. Vide Circular dated 14.01.2022 bearing reference F.No.DGGI/A-12026/8/2019-Estt./Esst./7334 issued by the Central Board of Excise and Customs to the Director General (All) and the Pr.Chief Commissioner / Chief Commissioner of CGST & Central Excise of respective Zonal Units. Text of Circular dated 14.01.2022 bearing reference F.No.DGGI/A-12026/8/2019-Estt./Esst./7334 is reproduced below:- Sub:- Preparation of panel for appointment of Senior Intelligence Officer in the Director General of GST Intelligence, Zonal Unit, Mumbai in the Level-8 in pay matrx-reg. The Director Gen....
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.... No.07/Ad(IV)2017 (F.No.A-11013/18/2017-Ad.IV), dated 12.06.2017 and in its website. The functions and powers in the aforesaid Office Order dated 12.06.2017 and in the website are captured under:- The functions and powers in the website of the Department of Revenue (DOR) The functions and powers in the aforesaid Office Order dated 12.06.2017 The officers of DGGSTI are empowered to discharge the functions of Central Taxes Officers as well as Central Excise and Customs officers. Their functions and duties are as under:- (a) Collection, collation and dissemination of intelligence relating to evasion of Goods & Service Tax and Central Excise Duties and Service Tax on an all India basis. (b) Studying the modus operandi of evasion relating to Goods & Service Tax, Central Excise and Service Tax and to alert the concerned field formations about it. (c) Studying the price structure, marketing patterns and classification of goods and services in respect of which possibilities of evasion are likely with a view to advising the field formations for plugging the loopholes and to suggest policy measures to the CBIC. (d) Supplementing and coordinating the efforts of the field formations in ....
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....nts like income tax etc. in cases involving evasion of central excise duties; (d) To investigate cases of evasion of central excise having inter- Commissionerates ramification; and (e) To advise the Board and the Commissionerates on the modus operandi of evasion of central excise duties and suggest appropriate remedial measures, procedure and practices in order to plug any loopholes. 177. Thus, officers of Directorate General of Central Excise Intelligence are "Central Excise Officers" for the purpose of Section 2(b) of the Central Excise Act, 1994. They are empowered to exercise power pan India under Notification No.38/2001-C.E. (N.T), dated 26.06.2001. 178. Therefore, the other ground of challenge to the impugned Notification No.22/2015-ST dated 16.9.2014 that pan India powers have been vested with the officers from the "Directorate of Central Excise Intelligence (DGCEI) [presently The Directorate of GST Intelligence]" and contrary to the restriction under Rule 3 of the Service Tax Rules, 1944 also fails. 179. The power of the Board under Notification 22/2014-ST dated 6.09.2014 cannot be read in a restricted manner. There is no impediment in appointing the officers of Direct....
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.... within his jurisdiction. 183. By virtue of Notification No.16/2007-S.T., dated 19.04.2007, in exercise conferred by Section 83A of the Finance Act, 1994 read with Rule 3 of the Service Tax Rules, 1994, the Central Board of Excise and Customs appointed the "Officers of the Central Excise" specified in Column (2) of the Table therein and invested with them all the powers of "Central Excise Officer" specified in Column (3) of the Table to be exercised within such jurisdiction and for such purposes specified in Columns (4) & (5) of the Table attached to the Notification. The said Table is reproduced below:- S. No Central Excise Officer Central Excise Officer whose power are to be exercised Jurisdiction Purposes (1) (2) (3) (4) (5) 1 All the Commissioner s of Central Excise The Commissioner of Central Excise Throughout the territory of India Investigation and adjudication of such cases, as may be assigned by the Board 2 The Commissioner s of Central Excise (Adjudication) The Commissioner of Central Excise Through out territory of India Investigation and adjudication of such cases, as may be assigned by the Board 184. By virtue of Notification No.6/2009-S.T. date....
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.....T.) Sec.2(b) Rule 3(1) Amended Not. No.38/2001 and 28/08 2 16/09/14 20/2014- S.T. - do Sec.65B(55) Rule Appoints Central Excise Officer) for local limits. Central Government the power of the Board to Principal Chief Commissioner/C CCE/CCST Jurisdiction of various Officer. 3 16/09/14 21/2014- S.T. Sec.37A Sec.83 Rule 3 Notification conferring pan India Jurisdiction to Officers of DGGI 4 16/09/14 22/2014- ST Sec.2(b) Rule 3 Sec.65B (55) Rule 3 Notification setting out local limits for assessing officers (in supersession of 20/2014 and 21/2014 supra) 5 09/06/17 12/2017- C.E.(N.T.) Sec.2(b) Rule 3 65(B)55 Rule 3 6 09/06/17 13/2017- C.E.(N.T.) 37A Rule 3 83 7 09/06/17 14/2017- C.E.(N.T.) 189. Therefore, the reasoning of the Hon'ble Supreme Court in Commissioner v. Sayed Ali 2011 (265) E.L.T. 17 (S.C.) and in Canon India Pvt Ltd Vs Commissioner, 2021 (376) E.L.T. 3 (S.C.) cannot be imported in the context of the Central Excise Act, 1944 and/or The Finance Act, 1944. 190. Therefore, without doubt, the officers from the Directorate are "Central Excise ....
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....hat the department is not burdened with show cause proceedings. 199. However, mere failure to call for a pre-consultation before the show cause notice was issued by that itself would not mean that impugned show cause proceedings initiated against the petitioner(s) are either illegal or without jurisdiction. Therefore, 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. 200. 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 challenged to the as the impugned show cause notice/Order in Original. 201. In W.P.No.20969 of 2021 in the case of Brilliant Corporate Services Private Limited, (Now known as M/s. Brivas Private Limited) vs. The Commissioner, Office of the Commissioner of GST and Central Excise, Chennai Outer Commissionerate, vide order dated 28.01.2022, it was ordered as follows:- "8. The petitioner has challenged the notice primarily on the g....