TaxTMI 
TaxTMI 
2023 (9) TMI 167
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....tral Excise & Service Tax, Siliguri, was having jurisdiction to decide the issue in hand has not been decided by this Tribunal. The appellant in support relied on the decision of this Tribunal in the case of Commissioner of Central Excise, Siliguri Vs. M/s. Mall Eximp (P) Ltd (Misc.Order No.M-183-185/KOL/08 dated 30.06.2008) to say that Shri C.M.Mehra was not having any jurisdiction to pass the adjudication order. 3. On the other hand, the ld.Authorised Representative appearing on behalf of Revenue, argued the matter at length and submits that the issue of jurisdiction was not addressed by the appellant before the adjudicating authority and as it is a matter of fact, the appellants were barred from raising it for the first time before this Tribunal. To support his contention, he relied on the decision of the Tribunal in the case of Hindustan Insecticides Limited Vs. Commissioner of Central Excise & Service Tax (LTU) reported in 2012 (286) ELT 208 (Tri.- Del.). He also relied on the decision of the Tribunal in the case of Hindustan Organic Chem. Ltd. Vs. Commissioner of Central Excise & Customs, Mumbai VII reported in 2010 (251) ELT 454 (Tri.Mumbai). He submits that that the appe....
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....inter alia included the following ground:- "5. The applicant further submits that there was not locus standi to adjudicate the issue in dispute in as much as the concerned Commissioner, who had been asked by the jurisdictional Chief Commissioner to hold the charge of Siliguri Commissionerate, was not vested with powers and to deal with adjudication proceedings in terms of Rule 3 of Central Excise Rules, 2002. It is interesting to note that the CBEC, New Delhi had not delegated the powers to the Chief Commissioner, nor the Government had issued any notification empowering the Chief Commissioner under Section 37A of the Cenral Excise Act, 1944. The Chief Commissioner and the Commissioner exceeded their jurisdiction while exercising the power in their own domain. Both the authorities acted contrarily to the provisions of law in vogue. In this regard the Hon'ble Bench had observed, "We find that the impugned order has been passed by Shri C.M. Mehra in his purported capacity as Commissioner of Central Excise & S. Tax, Siliguri. We have held in the case of Commissioner of Central Excise, Siliguri Vs. Mall Exim (P) Ltd., vide Tribunal's Misc. Order No. M-183-185/KOL/08 da....
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....ssue therefore, remains as to whether Shri C.M. Mehra was having jurisdiction to decide the issue in hand or not? 8. The said issue came up before this Tribunal in the case of Mall Eximp Ltd. (supra), wherein this Tribunal observed as under: "9. Shri Das, learned Senior Advocate points out that the term, 'Central Excise Officer' has been defined in Section 2 of the Central Excise Act, 1944 to mean Chief Commissioner of Central Excise, Commissioner of Central Excise etc. and any other officer invested by the Board with any of the powers of a Central Excise Officer under the Act. We note that Section 33 of the Act specifies the powers of adjudication of the Commissioner of Central Excise and other Officers; Section 37 empowers the Central Government to make rules under the Act; and Section 37A empowers the Central Government to delegate powers of the Board to a Chief Commissioner among others, by notification in the Official Gazette. 10. We note that Rule 3 of the Central Excise Rules, 2002 made under the Act empowers the Board to appoint Central Excise Officers by notification and also to specify the jurisdiction of a Chief Commissioner and a Commissione....
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.... "Provided that a Chief Commissioner of Central Excise may, within his jurisdiction, specify, the jurisdiction of a Commissioner of Central Excise (Appeals) and jurisdiction of such Commissioner of Central Excise (Appeals) shall be limited to the jurisdiction so specified." This proviso appears to suffer from excessive delegation in the absence of a notification issued under Section 37A authorising the Board to delegate its powers. In any case, it does not permit a Chief Commissioner to alter jurisdiction of a jurisdictional Commissioner or to appoint him to an additional jurisdiction as its scope is limited to the jurisdiction of Commissioner (Appeals). 13. We find that the Board has assigned all India jurisdiction to all Commissioners under Notification No. 39/2001-CE(NT) : dated26.06.01 but only for the purpose of adjudication and investigation of cases to be assigned by the Board. The Notification No. 11/2007-CE(NT) : dated 01.03.2007 issued under Section 37A and cited by the learned J.C.D.R. has to be interpreted in the context of Notification No. 39/2001-CE(NT). Both the notifications read together would allow a Chief Commissioner to allocate adjudication....
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....i to file the present Miscellaneous Applications in an appeal pertaining to the Siliguri jurisdiction." 9. The co-ordinate Bench of this Tribunal in the case of Mall Eximp Ltd. (supra) has already taken cognizance of the issue, whether Shri C.M.Mehra, Commissioner of Central Excise & Service Tax, Siliguri, was having jurisdiction to file a miscellaneous application or not, in his capacity as jurisdictional Commissioner holding additional charge of the Commissionerate, as per orders of the Chief Commissioner, and has decided that he was not having the required jurisdiction. 10. Before proceeding further, however, it is stated that in the current context and status of the law as analyzed in following paras, wherever for the words Chief Commissioner, the words Principal Chief Commissioner and wherever the word Commissioner, the words Principal Commissioner may also be read into to cater to the present day realities. 11. As stated, the question for consideration that emerges in the present matter is specific to the case of Sri C.M. Mehra, with regard to exercise of jurisdictional control as Commissioner, Central Excise, Siliguri and so stated in Para 7 above. However, in gener....
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....missioner of Central Excise or Deputy 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 Central Excise Officer under this Act.] Another important provision of law around which the present question revolves is Rule 3 of Central Excise Rules. The said rule is enumerated hereunder: Central Excise Rules, 2017 (Notification No. 19/2017-C.E.(N.T.) : dated 30-6-2017) RULE 3. Appointment and jurisdiction of Central Excise Officers- (1) The Board may, by notification, appoint such person as it thinks fit to be Central Excise Officer to exercise all or any of the powers conferred by or under the Act and these rules. (2) The Board may, by notification, specify the jurisdiction of a Principal Chief Commissioner of Central Excise or Chief Commissioner of Central Excise as the case may be, Principal Commissioner of Central Excise or Commissioner of Central Excise, as the case may be or Commissioner of Central....
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....ered jurisdiction of the Adjudicating Authority to adjudicate a case is fundamental in the discharge of statutory functions and strikes at the very root of the matter. This question is therefore absolutely relevant and begs an answer. This Tribunal vide its Order No. S-569-570/Kol/2008 dated 9th July 2008, in the case of the appellant at the time of hearing of the Stay Petition had interalia observed: "4. We have considered the submissions from both sides. We have waived the requirement of predeposit in respect of M/s. Permanent IP Systems, vide our Order dated 07.07.08 in Service Tax Appeal Nos. 311- 312/08 on the following grounds:- (i)................................... (ii)............................................. (iii) We find that the impugned order has been passed by Shri C. M. Mehra in his purported capacity as Commissioner of Central Excise & Service Tax, Siliguri. We have held in the case of Commissioner of Central Excise, Siliguri Vs. Mall Eximp (P) Ltd. vide Tribunal's Misc. Order No. M-183-185/KOL/08 dated 30.06.08, that Shri Mehra lacked jurisdiction to act as Commissioner, Siliguri under the Central Excise statute not havin....
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....herefore imperative to analyse the said issue in the light of the statutory provisions and judicial rulings, the rules of interpretation and the long standing customary and operational practices. In the case of Mall Eximp (P) Ltd., the competency of Shri C.M. Mehra, to exercise statutory authority in matters pertaining to Central Excise & Service Tax Commissionerate, Siliguri, while holding specific charge of Central Excise & Service Tax Commissionerate, Haldia and additionally assigned the charge of Commissioner of Central Excise & Service Tax, Siliguri by the Chief Commissioner, was challenged. In the said Order, the Tribunal dealt with the aspect of locus standi of the said Commissioner-Sri C.M. Mehra, with regard to the filing of a Miscellaneous Application, before the Tribunal, filed pursuant to the orders of the Hon'ble High Court, Calcutta. This was in the context of the authorization for the filing of the appeal before the Tribunal and rendering of the opinion of the Committee, in terms of Sec.35B(2) of the Central Excise Act. The Tribunal then observed that in judicial proceedings a person concerned with, is required to have a locus standi in specific matters of action....
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....ch 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. 22. A cursory reading of the provisions of the Central Excise law and that of the Service Tax law would reveal that unlike the Central Excise provisions (in stricto sensu), the Service Tax provisions do not provide for the (i) that to act as an officer of Service Tax, a notification by the Board is called for and (ii) that the publication of such a notification/intimation in the official gazette (refer Rule 2(f) of the Central Excise Rules, 2002) is also not called for 22.1. Further, in the Service Tax statute, room for the integration of the fact of appointment of a Central Excise Officer with in the territorial limits also exists and the fact of appointment of a Central Excise Officer can also be linked with functional discharge of powers. 22.2. More importantly, under the Service Tax statute, the officers of allied departments and agencies are not called upon to be appointed and discharge the functions of a Serv....
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....entral or the state government. Notification No. 30/2007 CE(NT) : dated 30.07.2007 is a case in point where in terms of the provisions of Rule 3(1) of the Central Excise Rules 2002, the Protocol Officer in the MEA/ or the Joint Secretary (Protocol) in the Govt. of Maharastra,/ or Govt. of West Bengal/ or the Govt. of Tamil Nadu are all notified as Central Excise Officers of appropriate rank and vested with limited functions and powers. This is pointed out to state that the contextual framework, adopted by the co-ordinate bench of this Tribunal, may not have led it to analyze the legal position in the spirit of the law, over-riding the stated provisions. It was extra-judicial course of action, of the co- ordinate bench to consider/interpret the two sub-rules-Rule 3(1) and Rule 3(2) as a subset of one another. 26. The Board once having notified A,B,C as a Central Excise Officer under Rule 3(1) and having also notified X,Y,Z as territorial jurisdictions, in terms of Rule 3(2) of the Central Excise Rules, 2002, and in accordance with the stipulations of Rule 2(f) ibid, that is by way of a notification in the official gazette, it nowhere flows from the law that assigning A to zone X,....
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.... the legal provisions, its intendment and the language deployed. It would not be inappropriate to state that the statutory responsibility casted upon the Board is: a) To identify and notify an individual as a Central Excise Officer-Rule 3(1) (words used are "such person") and b) Specify territorial jurisdiction of authorities and positions (read not individuals) namely the Commissioner of Central Excise, Commissioner (Appeals), Chief Commissioner etc. 29. To actually understand the legal provisions, it is necessary to make the distinction between authorization of powers in personam and that in rem. Thus the appointment of an individual (read "such person"),as a Central Excise Officer and subsequent elevations to defined levels of a Central Excise Officer are assignments/titles in the nature of in personam, while it would be more apt to state that locating the Officer of Central Excise to a given jurisdiction could relatively be an action in the category of in rem. 30. Thus, having specified a jurisdiction which is not disputed and having identified individuals (including Sri CM Mehra) as Central Excise Officers, it is not so mandated that the Board alone can....
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....gh relevant are however distinct from this two fold responsibility. 32. To supplement the above contention, it may be pointed out that subordinate officers like AC/DC/JC/ADC who are also assigned specific statutory powers including that of adjudication, are invariably not assigned to a precise specific territorial charge by the Board. Their services often having been placed at the disposal of Chief Commissioner/Commissioner such officers are given a notified charge of their jurisdiction only by the Chief Commissioner /Commissioner as the case may be. If the law as propounded in Mall Eximp (P) Ltd., is applied to such a situation, there would not only be complete chaos and anarchy in administering the law but the resultant situation may not be short of an interpretational holocaust of the statute. Also as an aside, it may be interesting to point out that on the Direct Taxes side too, the practices followed and the legal position are not far removed from the one on the indirect taxes side. Thus subordinate officers assigned to a specific charge, by the Board and placed under the administrative control of the Chief Commissioner are also assigned (on need basis) charge of territoria....
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....Commissioner is appointed by the Board to hold a specific charge, the officer cannot exercise any statutory power in respect of the jurisdiction, assigned to him by the Chief Commissioner. 36. A close reading of the statutory provisions however reveals that Rule 3(1) of the said Rules, merely confers on the Board, the power to appoint any person as it thinks fit to be a Central Excise Officer. The fact of such an appointment may flow by way of a notification in the official gazette or in any other manner, not so specified, obviously at the discretion of the Board. The Rule further empowers the Board with the authority, to either vest in such Central Excise Officer all or limited powers provided under the statute. The Rule thus actually vests in the Board, the discretion to even entrust, limited powers upon a Central Excise Officer. There is nothing in the rule, to suggest that such appointment/ publication by way of a notification is mandatory. Even rule 2(f) ibid-which states ("Notification means the notification published in the official gazette"), does not come to aid in as much as it only defines the meaning of the word notification and as long as the rule clearly uses the t....
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...., what does not flow out of the legal provisions expressly worded, when discharge of such functions is either administrative in nature or simply discretionary. 38. The word "may" in Rule3(1) cannot be deemed to be read as "shall". Subsequent posting, promotion, transfer, assignment of a charge etc be it of a regular nature, or by way of ad hoc or additional charge, can in no way be considered as an appointment. The appointment in legal parlance happens when two entities/bodies/individuals (the Appointing Authority i.e. the Central Government and the individual) bind each other into a relationship. This could be at the lowermost rung of the ladder indicated to be as a Central Excise Officer in the statute or in any other capacity of Central Excise Officer so identified. It is somewhat akin to that the date of birth of a person is in effect the "birthday" i.e. date on which the person was born, while all such birth days in subsequent years are in effect "anniversaries". It is equally important to note here that the implication and provisioning for the said sub rule is only restricted to the selection/specification/nomination/identification considered as appointment of the person a....
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.... publication on the website / issue of trade notices/direct communication or addressing by way of office orders to concerned agencies/bodies/individuals and others concerned. All these and several such other modes of communication are time tested, well-established, or of proven efficacy and above all have the approval of customary law and practices even if not so indicated in the statute. The nature of publication by way of notification, each time there is a change in the hierarchy or rank of the Central Excise Officer as considered to be imperative in the Mall Eximp (P) Ltd. case, neither actually flows in law, nor is made out to be so necessary. Furthermore, having posted/assigned an already appointed Central Excise Officer to a specific jurisdiction under the supervisory control of his immediate senior-Chief Commissioner/Commissioner, this scenario could effortlessly be replicated further down the ladder and chain of command. Under the circumstances, the authority of the Chief Commissioner /Commissioner to play with and post the officers to such a jurisdiction as felt appropriate is unquestionable. It can at best be a case that the Board assigns a particular Central Excise Offic....
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.... (2) ibid. The assigning of additional territorial jurisdiction to a Central Excise Officer (read Commissioner) under the administrative control of a senior supervisory officer, (read Chief Commissioner) by such supervisory officer (read Chief Commissioner) is no more than donning an extra hat, in addition to the one already entrusted with by the Board. Also it would be improper to say that a Central Excise Officer (read Chief Commissioner/Commissioner) who is not a member of the committee could suo-moto abrogate to himself as to be the member of such a committee and exercise legal functions as contemplated. However, such a scenario does not arise in situations where a supervisory controlling officer (read the Chief Commissioner) so assigns jurisdictional control of one of the identified territorial jurisdictions of the Commissionerate within his administrative control to one of his junior colleagues (read the Commissioner), who has been duly assigned to the supervisory officers administrative and juridical control by the Board. 43. Moreover the adoption of the ratio of Tribunal's decision in Mall Eximp (P) Ltd., supra in relation to the aspects concerning territorial jurisd....
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....tent to be gathered from the language employed in the statute. In view of the discussions in earlier paras, it is felt that the Tribunal in Mall Eximp (P) Ltd., failed to grasp the legislative meaning and arrived at a proposition leading to absurdity. The Hon'ble Supreme Court in the case of UOI Vs. Dharmendra Textile Processor for -2008(13) SCC 369 had held that it was not for Court to read anything beyond the statutory provisions when the language deployed was plain and unambiguous. 45. It appears that this cardinal principle of interpretation as well as the directions of the Hon'ble Apex Court has been given a complete go by, by the Tribunal in the case of Mall Eximp (P) Limited. Further, it is oft known and too well laid out, that in case of possibility of two reasonable views, the Courts ought to give preference to a construction that promotes constitutionality. Also it may be pointed that while this proposition holds for where the provision is susceptible to two possible views. In the present case, only one view appears plausible and the view canvassed in Mall Eximp (P) Ltd., only comes out by interlacing the statutory provisions with extraneous inputs and with ima....
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....fficer/Audit Officer (Admn) is as given in Annexure-I. 1.6.3. The itemized list of powers exercisable by the Principal Director of Audit is given in the M.S.O. In terms of the Rule 3 of the delegation of Finance Power Rules 1958 read with SR2 (10), the Director (Admn) has been declared as the Head of the Office for the purpose of Finance Rules of the Government. The delegated powers exercisable by the Director (Admn) as Head of Office and the Sr. Audit Officer (Admn) are given in Annexure-II. 1.7. Powers exercisable by an Officer while holding current charges of the duties of the post during the absence of the regular incumbent of that post An officer appointed to perform the duties of an appointment can exercise administrative or financial powers vested in the full-fledged incumbent of the post but he cannot exercise statutory powers, whether those powers are derived direct from an Act of Parliament (e.g. Income Tax Act) or Rules, Regulations and bye-laws made under the various articles of the constitution (e.g. FRs. C.C.& A. Rules, C.S.Rs, Delegation of Finance Power Rules etc.). (Authority: Ministry of Home Affairs, OM No. F.7/14/61-Ests(A) da....
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....e bound to give effect to the said meaning. As stated earlier and at the cost of repetition, it is added that the language of the provisions in the statute as considered in Mall Eximp (P) Ltd., is plain and unambiguous but the Hon'ble Tribunal appears to have erred therein in juxtaposing the provisions of Rule 3(1) & Rule 3(2) of the Central Excise Rules, to arrive at the meaning/interpretation that is not only unintended and unconstitutional but is certainly capable of creating administrative inconvenience. 48. The Larger Bench of the Tribunal in CCE, New Delhi Vs. Avis Electronics Pvt. Ltd., (2002 (117) ELT 571 T-LB) had held that in understanding the provisions of the rules, the Tribunal was not to supplement or add words to the Rule. While it could be argued that the decision rendered in Mall Eximp (P) Ltd., is without the aid of any words to the provisions contained, but it is a fact that the manner of reading the law as interpreted in Mall Eximp (P) Ltd., gives rise to a meaning that does not flow from the language deployed in the statute unless extraneous words are added to it. In fact, such juxtaposition of the various provisions is nowhere contemplated or visualized....
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....ss good, than a regular incumbent and is also not made out to be so in law. The practice ensures that the affairs of the Commissionerate are not impeded and is therefore as much valid and legal. 51. While interpreting a statutory provision, the first and foremost duty of the court is to ascertain the intention of the legislature, moreso when in doubt. A statute is required to be construed according to those that make it, with the courts required to act upon the true intention of the legislature. The intention of legislature assimilates two aspects: (i) -that carries the concept of "meaning" (i.e. what the word means) and (ii) - that conveys the concept of "purpose & object" (or the reason and spirit) Thus the construction could combine both literal as well as a purposive approach. The words need to be read in their entire context and in their grammatical and ordinary sense. Given the said stipulations and approach in interpretation, it is noted that the word "appointment" and "posting" convey two distinct connotations. Thus while:- Appointment can be considered as an offer for a job, the (refer rule 3(1) of Central Excise Rules) Ac....
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....isgarh, found no qualms and illegality in the proposition and the fact that the officers of the department (read Commissioners / Central Excise Officers) were merely promoted to higher echelons and no territorial jurisdiction was conferred thereupon, which had been separately notified by way of publication in the official gazette. The Hon'ble High Court held that there was no need to issue such GOs by way of notification in official gazette each time the promotions were conferred to the officers. The Hon'ble High Court categorically held that the provisions of the rules did not mandate that promotion orders were required to be issued by way of notification. 54.1. This lends credence to the discussions and our findings that it is not incumbent in law to be notified each time, there is a change in rank and position of the Central Excise Officer and this is so, by virtue of the fact that the incumbent person is already a notified Central Excise Officer. It is also a pointer to the fact that Rule 3(1) & Rule 3(2) of Central Excise Rules ibid, operate in different contexts, are mutually exclusive and the two cannot be considered to be inter related or read in conjunction to a....
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....tting restriction on the specific statutory provision of the Act and Rules and under the Act, nowhere it is provided that such power, can be vested in a person and cannot be vested upon a post. Contrary to the above, in fact, the provision specifically provides for vesting of power upon a person by virtue of holding of the post of Chief Commissioner or Commissioner. Therefore, there was no need for publication of the notification by the Board in the name of the persons who were holding the post of Chief Commissioners". and stated that appointment to the post was in perpetual succession of the officers holding the post. In fact, the Hon'ble High Court in the case overruled the Tribunal's decision in the case of CCE, Kol-III Vs. Naffar Chandra Jute Mills Ltd., -2008(230)ELT-244-T, which was passed by the very bench which pronounced the judgement in Mall Eximp (P) Ltd., involving similar questions of law though in a different contextual framework. 58. It may be of interest to mention that post the amendment of 2005 in Section 35B of the Act, introducing a system of review by a committee comprising of two Commissioners / Chief Commissioners their valid empowerment (a ques....
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....ve been agitated further, may not be a good law any more. 61. In the case of Coromandel Fertilizer Ltd., -2009(237)ELT 453 H.C., the Hon'ble Bombay High Court while finding nothing wrong in the appeal filed by the Commissioner of Central Excise, Belapur who held additional charge of the Raigad, Central Excise Commissionerate (as both charges together constituted a committee), further observed that while there was no defect in the said action and if at all any, it was only procedural and an irregularity and not illegality. The Hon'ble Court observed that procedure should not be allowed to come in the way of justice and the Tribunal should not have terminated the appeal only for this reason. It thus restored the appeal before the Tribunal. This decision thus makes it evident that in the least, there is no illegality vis-a-vis the statutory provisions when it comes to the Chief Commissioner assigning additional charge of a jurisdiction to the Commissioner and in such discharge of the statutory functions thereto, by the incumbent / Commissioner. 62. The Hon'ble Gujarat High Court in the case of Commissioner of Central Excise and Customs, Surat-I Vs. Rupa Dyeing and....
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....ose and object of the Act." Relevant parts of the said judgment are reproduced below: "19. The use of the word "or" in Section 2(b) of the Act, 1944 is clearly disjunctive and cannot be read as conjunctive. The (unamended) definition clause reads the Central Excise Officer, means any officer of the Central Excise Department. Similarly, in the amended definition clause Section 2(b) of the Act, 1944 Central Excise Officer, means Chief Commissioner of Central Excise..... The first category which is contemplated both in the amended and unamended definition of Central Excise Officer clearly indicates any officer of the Central Excise Department to mean a Central Excise Officer. Under (unamended definition) officers of the Central Excise Department as now exemplified in first part of the definition by amended Section are to be Central Excise Officer. The Section 2(b) of the Act, 1944 (unamended) clearly meant an Officer of the Central Excise Department to be the Central Excise Officer and no further action or any formality was required to be completed or contemplated. Investing of the power of the Central Excise Officer was contemplated when "any person" (including an o....
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....rsons who are not working in the Central Excise Department. The notification dated 26-6-2001, contains several designations of the officers who were not working in the Department of Central Excise and for them the appointment was necessary by the Board for investing the power. Since the notification dated 26-6-2001 was issued by the Board under the 2001 Rules, all action done under the 2001, Rules, have been saved in the 2002, Rules as noticed above. The said Notification still continues to hold the field and the argument of the learned counsel for the petitioner that after the 2002, Rules, publication of appointment of Additional Director General/Commissioner in the Official Gazette was necessary cannot be accepted. We, however observe that in view of Rule 3(1) read with Rule 2(f) of the 2002, Rules, whenever the Board appoints a persons (not belonging to the Department of Central Excise), his appointment is to be made by way of notification after due publication in the Official Gazette. This is the plain meaning of Section 2(b) of the Act, read with Rule 2(f) of the 2002, Rules. 64.1. In the context of investment of power to a Central Excise Officer reference, may be had to th....
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.... power to act as such. As observed above, Chief Commissioner of Central Excise or Commissioner of Central Excise who are Head of the Department and one of the highest officers of the Central Excise respectively are already invested with the power to carry out duties and functions under the Act, 1944. This can be explained by taking a illustration: An officer of the Central Excise Department is appointed as a Commissioner of Central Excise, and a notification is published of his appointment as a Commissioner of Central Excise. Now as per the argument of the learned counsel for the petitioner, for exercising any power of "Central Excise Officer" under the Act, 1944, a notification under Rule 3(1) of the Rules, 2002 is mandatory and without any notification under Rule 3(1) of the Rules, 2002 published in the Official Gazette, investing the power of "Central Excise Officer" to the Commissioner of Central Excise., he is incapacitated to exercise any power entrusted to Central Excise Officer. The argument has to be rejected since by virtue of a person being a Commissioner of Central Excise, the power to function as a Central Excise Officer is already invested in him and no further invest....
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....of Wealth Tax Vs. Hashmatunissa Begum-1989(40) ELT 239 (S.C.), while explaining the difference between interpretation and construction held that when two views in law are possible, the view that promotes constitutionality is to be preferred and observed: Para 12: "The rule of construction that if the statutory provision is susceptible or admits of two reasonably possible view then the one which would promote its constitutionality should be" preferred on the ground that the legislature is presumed not to have intended an excess of its own jurisdiction." 68. Clarifying on the interpretation aspect, the Hon'ble Apex Court in the case of State of Punjab Vs. Prem Sukhdas (1977 (3) SCR-408 had held that "The principle that where a provision is capable of one or two interpretations, the interpretation which validates rather than one which may invalidate a provision applies only where two views are possible. It cannot be pushed so far as to alter the meanings of the clear words used in an enactment and so, in effect, repeal statutory provisions by making them useless without holding them to be void." 69. The interpretation rendered by this Tribunal in Mall Eximp....
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.... "..................the applicants appeared before the Commissioner and had not taken any objection regarding jurisdiction. It is not a case of the applicants that the adjudicating authority was not the Commissioner of Central Excise or some junior/ subordinate officer was holding charge of the Commissionerate and passed the adjudication order". 72. In view of our discussions aforesaid, the legal position as explained and pronouncements of higher judicial authorities as brought out in preceding paras we are of the firm opinion that the decision rendered by the Tribunal in the case of Mall Eximp (P) Ltd., is not good law and therefore it would not be appropriate to be relied upon to give any meaningful interpretation to the question involved. 73. Further, in view of the pronouncements of higher judicial foras, referred to in various sub paras of para 21 above, we are of the view that the learned adjudicating authority wielded absolute jurisdiction in the matter and was the proper authority exercising statutory, administrative and functional jurisdiction over the Central Excise & Service Tax Commissionerate, Siliguri in his capacity as Commissioner of Central Excise & ....