TaxTMI 
TaxTMI 
2008 (9) TMI 263
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....Philips India Ltd. v. Commr. of C. Ex., Kol-I 4. Commr. of C. Ex. Kol-III v. Naffar Chandra Jute Mills Ltd. - 2008 (230) E.L.T. 244 (Tribunal). 2. A common question that has arisen in all these 6 (six) Appeals is whether the reviewing Authorities i.e. Chief Commissioner who are signatories to the Review Order cum Authorisation were appointed in the manner known to law and invested with the power under statute to perform review function. Revenue seeks appeal remedy against following consequences of adjudication made by impugned orders as mentioned under each such appeal as under: Excise Appeal Nos. 403-407/08 3. These 5 (five) Appeals were filed by Revenue pursuant to Review Order dated 24-7-2008 passed by a Committee of learned Chief Commissioners against order of adjudication dated 23-4-2008 passed by the learned Commissioner, Dibrugarh dropping all the charges brought against M/s. Kothari Products in Appeal Case No. Ex. Ap. 403/08 allowing consequential relief holding that the product cleared from the factory along with the free gifts of tobacco (purchased from another unit on payment of duty and was not subject to any change), mentioned in the Show Cause Notice were ....
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....ief Commissioners of Central Excise in existence under Section 35B(1B) of the Central Excise Act, 1944 to authorise filing appeals by Revenue for the reasons stated therein. 8. According to Section 35E of the Act the Reviewing Committee may, by order, direct the Commissioner to apply to the Tribunal for determination of such points arising out of the decision or order as may be specified by the said Committee in its order. Under Section 35B(1B) of the Central Excise Act, 1944, the Central Board of Excise & Customs (hereinafter referred to as "the Board") has been delegated with powers to constitute Committees of Chief Commissioners by Notification in the Official Gazette for review. It was our observation in Nafar Chandra Jute's case (supra) that Office Order No. 186/07 dated 26-7-2007 was issued by Deputy Secretary to the Govt. of India and that order conveyed the approval of the President for promotion of 12 Officers to the grade of Chief Commissioner of Customs & Central Excise including Shri Hrishikesh Sharan at Sl. No. 7 w.e.f. the date of assumption of charge to the post and until further orders. In para 2 of the Order, transfer and posting of 19. Chief Commissioners of Cu....
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....espect of appointment of Shri Hrishikesh Saran and Shri Rajendra Prasad as the Chief Commissioner of Central Excise relating to respective jurisdiction who were signatories to the Review Orders filed in respect of these 6 (six) departmental Appeals. 11. Learned DR appearing on behalf of Revenue reiterated following arguments as follows and as that was made him in Nafar Chandra Jute. Mills' case (supra): (i) Rule 3 of the Central Excise Rules uses the word "may" and it is not mandatory to issue a notification in the Official Gazette for appointment of a Central Excise Officer. The Board can issue such notification wherever it considers it necessary so to do but it is not required to issue such notification in each and every case. It is permissible for a Central Excise Officer to perform statutory and administrative functions in public interest even if he has not been appointed by issue of a notification in the Official Gazette. (ii) Rule 3 is subordinate legislation and should not be so read so as to render non-est the statutory functions required to be performed under the Central Excise Act by a Central Excise Officer as defined in section 2(b) of the said Act. Defect, if ....
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....the public as to appointment of such Public functionaries. This mode of appointment is duly known to law and is a conclusive evidence of following of due process of law which enables them to act as statutory authority thereby within the jurisdiction defined. On failure to so appoint, an authority fails to be invested with statutory powers under law and acts done by such authority shall be nullity. 29. Similarly the Customs Act, 1962 has its implementing machinery through Section 3 & 4 of that Act. Who are all different classes of officers are specified in Section 3 of that Act. For exercising powers under these statutes, appointment of the Central Excise officers and officers of Customs are made through Notifications. Notification itself is a pointer to the fact that for the purpose of exercising statutory functions under one provision or other, the Officer concerned notified is invested with power under those provisions. Vesting of power by public Notification being an essential procedure known to law, no power can be invested by any other procedure strange to law. It has been held by the Hon'ble Supreme Court in Mohtesham Mohd. Ismail v. SPL. Director, Enforcement Directorate ....
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....azette of India is 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. A Gazette is admissible evidence being official record evidencing public affairs and a court is required to presume its contents as genuine unless contrary is proved. Therefore appointment of reviewing Authorities who are learned Chief Commissioners to discharge the function of the Central Government for a specific purpose of the Central Excise Act, 1944 and the Customs Act, 1962 is made known to the public only when their appointment is published in the Official Gazette and power of review made available to them by appropriate Notification. 32. An Authority assumes jurisdiction only when that Authority is vested with the same. Whenever question of jurisdiction arises for consideration whether such a plea was raised earlier by litigant is a question of law and that inevitably calls for entertainment by a higher forum. This follows from the judgement of the Hon'ble Supreme Court in the case of Moly and Another v. State of Kerala - (2004) 4 Supreme Court Cases-584. Tribunal has ....