TaxTMI 
TaxTMI 
2008 (10) TMI 44
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....peal on the basis of an authorization issued by the Committee of Chief Commissioners holding that the impugned order is not legal, proper and correct. A Cross Objection has been filed by the Respondents against the Appeal filed by the Department. 3. We find that the impugned order has been passed merely holding that Bhubaneswar-II Commissioner has no jurisdiction in the matter, without going into the merits of the case. The learned Jt. CDR in his arguments before the Tribunal has also not argued on the merits of the case. Hence, though the Respondents in their Cross Objection as well as in their arguments before us have touched upon the merits of the case, we refrain form expressing any opinion on the merits of the case as the same has not been dealt in the impugned order. In case, the Department succeeds in this appeal, the matter has to be remanded back to the original Authority for passing an order on merit. 4. The Respondents have their Registered Office at Barbil which falls within the territorial jurisdiction of Bhubaneswar-II Commissioner in Orissa. The Respondents have not opted for centralized registration. The impugned services have been provided by them in the state of....
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....ter or the exporter is liable to pay the customs duty. The Registered Office of the importer or exporter may be located anywhere, but normally the customs official in whose territorial jurisdiction the import or export takes place has the power to adjudge the duty unless some other official is specially assigned jurisdiction over a particular case of import or export. In the case of excise duty, the incidence of levy is on the goods manufactured. The manufacturer who is liable to discharge the duty liability may have his registered office in another place, but there is no doubt that the excise officials in whose territorial jurisdiction, the manufacture of the goods takes place are competent to adjudge the duty unless some other official is specially assigned the job. In the case of sales tax, the incidence is on sale of goods and hence the jurisdiction to adjudge sales tax is to be decided with reference to the place where sale of goods takes place unless the relevant legislation confers jurisdiction with reference to location of the seller. 8. We find that the central excise officials have been vested with powers under the Service Tax Law instead of appointing separate set of of....
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.... brought into force for the first time in 1994, an Order No. 1/1/94, dated 29-6-1994 was issued under Rule 3 of the Service Tax Rules, 1994. The said Rule 3 reads as under:- "Rule 3. Appointment of officials. - The Central Board of Excise and Customs may appoint such Central Excise Officers as it thinks fit for exercising the powers under Chapter V of the Act within such local limits as it may assign to them as also specify the taxable service in relation to which any such Central Excise Officer shall exercise his powers." 12. This Rule empowers the Board to appoint such Central Excise officers for exercising the powers under the Service Tax Law within such local limits as it may assign and also to specify the taxable service in relation to which such officers shall exercise their powers. The Service Tax Order No. 1 /1/94, dated 29-6-1994 issued under the said Rule and as amended reads as follows "in exercise of the powers conferred by Rule 3 of Service Tax Rules, 1994, the Central Board of Excise & Customs appoints the following Central Excise Officers for purpose of assessment and collection of service tax. - Sl. No. Designation of the Officer And jurisdiction Assesse....
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....e Rules, 1944. 3. The provisions contained in sub-rule (ii)(a) and sub-rule (viii)(a) of Rule 2 of Central Excise Rules, 1944 in relation to the meaning of Collector (Appeals) and Principal Collector respectively also will apply to matters relating to Service Tax. 4. This Order shall come into force on the 1st day of July, 1994." 13. From the above Order, it is clear that the jurisdiction of the central excise officers for service tax matters has been specified with reference to the 'assesses' as is clear from paragraph 2 of the Order as also from the Table in the body of the Order. The word 'assessee' has been defined in Section 65 of the Finance Act, 1994 as follows:- '(7) "assessee" means a person liable to pay the service tax and includes his agent;' 14. The above definition read with the provisions of Section 68 leaves no doubt that an 'assessee' means a person including a legal person such as a company or firm who is liable to pay the Service Tax. 15. Though the Commissioners of Central Excise, who have been vested with the powers under the Service Tax Law, have territorial jurisdictions as notified under the Central Excise Rules (present....
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....ssee. In our view the Commissioners in whose territorial jurisdiction an assessee's registered office is located can only exercise jurisdiction for service tax purposes in terms of said Service Tax Order No.1/1/94. 18. Shri Kartik Kurmy, learned Advocate for the Respondents has also brought to our notice that against our earlier order dated 2-7-2007, the Commissioner, Bhubaneswar-II has filed a tax appeal before the Hon'ble High Court of Orissa claiming jurisdiction over the Respondents in service tax matters. As stated earlier, the said order was passed by this Bench on the Appeal of the Respondents purely on the ground that in a subsequent order, the Commissioner himself had held that he had no jurisdiction in the matter for the subsequent period. As also observed by us earlier, the said order was passed before the Department's Appeal was filed in this case before us. However, as the matter is sub-judice before the Hon'ble Orissa High Court, we refrain from expressing any view in respect of the submissions made by the learned Advocate in respect of the said case earlier decided by us. Issue No. 2 Jurisdiction of the Committee of Chief Commissioners and Maintaina....
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....Singh has been only posted as Chief Commissioner by an Office Order No. 186/2007 dated 26-7-2007 and not through a notification in the Official Gazette as required under the excise law. Consequently, in this case also we are of the prima facie view that since the impugned Review Order and the authorization to file appeal before the Tribunal has been passed by a Committee comprising of Shri Amar Singh, who has not been appointed as Chief Commissioner, Ranchi in the manner prescribed under the law, and since in the eyes of law the said Committee cannot be said to have been invested with the statutory powers to carry out the review function, the acts done by such a Committee is nothing but a nullity. 21. Dr. Gautam Ray, learned Jt. CDR appearing in this case states that he has made a reference to the Board on the question of issuing Gazette Notifications for appointment of Central Excise Officers which arose in various other cases earlier vide (i) CCE, Siliguri v. M/s. Mall Eximp Pvt. Ltd. - 2008 (227) E.L.T. 619, (ii) CCE-Siliguri v. M/s. Hindusthan Coca-cola Beverages - 2008 (229) E.L.T. 370, (iii) M/s. Philips India Ltd. v. Commissioner of C.Ex, Kolkata-I - 2008 (229) E.L.T. 668 a....
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....ers in any disadvantageous position. (ix) Issuing Notifications under Rule 3(1) is merely in the nature of an executive act and it does not matter if such acts are done by issuing office orders or by issuing notifications. (x) The Appeal and Review provisions in the act do not contain any reference to notifications required to be issued under Rule 3 of the Central Excise Rules. 22. Shri Kartik Kurmy, learned Advocate appearing on behalf of the Respondents supports the view taken by the Tribunal in the cited cases earlier decided by the Tribunal on the issue of appointment of central excise officers and vesting them with powers under the customs and central excise law by gazette notification. He also states that when the law requires a certain thing to be done in a particular manner, the same is required to be done in that manner and not in any other manner. He also states that a central excise officer must be appropriately vested with jurisdiction under the law and he cannot assume jurisdiction which he does not have, even with the consent of the parties. 23. As stated earlier, we have carefully considered the issue of appointment of central excise officers in the grade of Comm....
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....xcise Officer who is subordinate to him." The expression 'Central Excise Officer' in Rule 3(1) and in Rule 3(3) has to be read in the light of the definition contained in the main Act, in Section 2(b), meaning Chief Commissioner of Central Excise, Commissioner of Central Excise etc. In other words, Rule 3(1) has to be read requiring the appointments of Chief Commissioners of Central Excise and Commissioners of Central Excise by notification in the official Gazette and under Rule 3(2) similar notifications are required specifying their jurisdiction. Rule 2(f) of the Central Excise Rules, 2002 defines "notification" to mean notification published in the Official Gazette. We find notifications in the Official Gazette have been issued under Rule 3(2) specifying jurisdiction of various Chief Commissioners and Commissioners of Central Excise by designation. What is lacking and requires to be done is appointment of specific officers by notification in the Official Gazette as Chief Commissioners of Central Excise and Commissioners of Central Excise under Rule 3(1) to the specific jurisdictions. Section 37(1) of the ....
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....rced or relied upon even at the stage of execution and even in co-lateral proceedings. (7) Marathwada University v. Seshrao Balwantrao Chawan - (89) 3 SCC 132: When statute prescribes a particular body to exercise a power it must be exercised by that body alone and not by others. (8) West Bengal Electricity Regulatory Commission v. C.E.S.C. Ltd. - 2002 (8) SCC 715: No Authority can act in excess of the jurisdiction conferred on it. (9) Income Tax Officer v. M.C. Ponnoose - 1970 (75) ITR 174 (SC): The Government cannot invest an officer with the powers of a tax recovery officer under the statute w.e.f. the date prior to the date of Notification. (10) UOI v. Ganesh Das Bhojraj - 2000 (116) E.L.T. 431(S.C.) : It is established practice of the Government that the publication in the Official Gazette is done to communicate various decisions required by different statutes. Intention of Government comes into effect as soon as the decision is communicated through the Official Gazette published. 27. In the light of these citations, we find no reason to take a different view from the one we have taken in the case of Commissioner of Central Excise, Kolkata-III v. M/s. Naffar Chandra Jute ....