TaxTMI 
TaxTMI 
TaxTMI 
2024 (10) TMI 314
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....E MR. JUSTICE SUJIT NARAYAN PRASAD And HON'BLE MR. JUSTICE ARUN KUMAR RAI For the Petitioner : Mr. Kartik Kurmy, Advocate Mr. Nitin Kr. Pasari, Advocate Ms. Sidhi Jalan, Advocate For the Resp.-CGST : Mr. P.A.S. Pati, Sr. Standing Counsel Mr. Amit Kumar, Sr. Standing Counsel Mr. Anurag Vijay, Jr. Standing Counsel Mr. Om Prakash, Advocate Mr. Srijan, Advocate For the Resp.-DVC : Mrs. Debolina Sen Hirani, Advocate ORDER Per Sujit Narayan Prasad, J. 1. The instant writ petitions have been filed under Article 226 of the Constitution of India wherein demand notice-cum-show cause notices dated 31.03.2023 issued by the respondent no.2 in exercise of power conferred under Section 74(1) of the Central Goods and Services Tax Act, 2017 (hereinafter referred to as the Act, 2017) for the period from July, 2020 to March, 2022; November, 2017 to April, 2020; November, 2017 to April, 2020; July, 2020 to March, 2022; April, 2019 to March, 2022 and; April, 2019 to March, 2022, respectively, have been assailed on the ground of lack of jurisdiction. 2. Since in all these writ petitions, common issue has been raised, as such, are being taken up together for its consideration. 3. Since the show c....
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....he aforesaid fact rather he is fair enough to submit that since the co-ordinate Bench has expressed the prima facie view and as such, the same needs to be decided for the purpose of coming to the conclusive finding. 7. This Court, considering the observation made as under paragraphs-8 and 10 of the order dated 18.06.2024, is of the view that if the co-ordinate bench on the basis of the prima facie view has held the writ petitions maintainable, as such, the same is to be considered by coming to the conclusive finding as to whether the writ petitions are maintainable or not. 8. Mr. Kartik Kurmy, learned counsel for the petitioners assisted by Mr. Nitin Kr. Pasari, learned counsel has advanced his argument that the show cause notices are under challenge on the ground of jurisdiction of the authority who has issued the said show cause notices, since according to him, the said notices have been issued under the signature of Additional Director, Directorate General of Goods and Services Tax Intelligence, Regional Unit, Jamshedpur and Deputy Director, Directorate General of Goods and Services Tax Intelligence, Regional Unit, Jamshedpur who have got no authority to issue the said notices....
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.... sub-section (1) at least six months prior to the time limit specified in sub-section (10) for issuance of order. (3) Where a notice has been issued for any period under sub-section (1), the proper officer may serve a statement, containing the details of tax not paid or short paid or erroneously refunded or input tax credit wrongly availed or utilised for such periods other than those covered under sub-section (1), on the person chargeable with tax. (4) The service of statement under sub-section (3) shall be deemed to be service of notice under sub-section (1) of section 73, subject to the condition that the grounds relied upon in the said statement, except the ground of fraud, or any wilful-misstatement or suppression of facts to evade tax, for periods other than those covered under subsection (1) are the same as are mentioned in the earlier notice. (5) The person chargeable with tax may, before service of notice under sub-section (1), pay the amount of tax along with interest payable under section 50 and a penalty equivalent to fifteen per cent. of such tax on the basis of his own ascertainment of such tax or the tax as ascertained by the proper officer and inform the prope....
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....al tax appointed under section 3 and the Commissioner of integrated tax appointed under the Integrated Goods and Services Tax Act; 2(25) ―Commissioner in the Board means the Commissioner referred to in section 168; 2(91) ―proper officer in relation to any function to be performed under this Act, means the Commissioner or the officer of the central tax who is assigned that function by the Commissioner in the Board;" 15. It is thus evident from the definition of 'Commissioner' as defined under Section 2(24) of the Act, 2017 which means the Commissioner of central tax and includes the Principal Commissioner of central tax appointed under section 3 and the Commissioner of integrated tax appointed under the Integrated Goods and Services Tax Act. While the 'Commissioner in the Board' which has been defined under Section 2(25) which means the Commissioner referred to in Section 168. 16. Section 168 also needs to be referred herein of the Act, 2017 as per which power has been given to issue instructions or directions. For ready reference, Section 168 of the Act, 2017 reads as under: "168. Power to issue instructions or directions.- (1) The Board may, if it considers it ....
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....s the Commissioner or the officer of the central tax who is assigned that function by the Commissioner in the Board, meaning thereby, the Proper Officer will be said to be the Officer either the Commissioner or the Officer of the Central Tax who is assigned that function by the Commissioner in the Board. 20. If the definition of the Poper Officer will be taken into consideration along with the provision of Section 168 of the Act, 2017, the Commissioner if authorized to act by the Board in view of the power as conferred under Section 168 of the Act, 2017, the Commissioner or the Joint Secretary will be said to exercise the power of Commissioner or Joint Secretary construed to be with the approval of the Board. 21. The reference of a notification dated 01st July, 2017 has been made upon which much emphasis has been given by the learned counsel for the petitioners. The said notification has been issued under the authority of the Ministry of Finance, Department of Revenue, Central Board of Excise and Customs in exercise of powers conferred under Section 3 read with Section 5 of the Central Goods and Services Tax Act, 2017 (12 of 2017) and Section 3 of the Integrated Goods and Service....
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....ence or Superintendent, Goods and Services Tax or Superintendent, Audit Superintendent 9. Intelligence Officer, Goods and Services Tax Intelligence or Inspector, Goods and Services Tax or Inspector, Audit` Inspector 2. This notification shall come into force with effect from the 1st day of July, 2017. [F. No.349/52/2017-GST] (Dr. Sreeparvathy S.L.) Under Secretary to the Government of India" 22. Subsequent to the aforesaid notification, a corrigendum has been issued on 29th July, 2019 whereby and whereunder, the notification which was issued on 01st July, 2017 has been modified to the extent that in place of "Central Board of Excise and Customs", the same shall be read as "the Government" in view of the provision of Section 3. For ready reference, the said notification is also being referred as under: "Ministry of Finance (Department of Revenue) (Central Board of Indirect Taxes and Customs) Corrigendum New Delhi, the 29th July, 2019 G.S.R. 533(E).-In the notification of the Government of India, in the Ministry of Finance, Department of Revenue, No. 14/2017-Central Tax, dated the 01st July, 2017, published in the Gazettee of India, Extraordinary, Part II, Se....
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.... tax may exercise the powers and discharge the duties conferred or imposed on him under this Act. (2) An officer of central tax may exercise the powers and discharge the duties conferred or imposed under this Act on any other officer of central tax who is subordinate to him. (3) The Commissioner may, subject to such conditions and limitations as may be specified in this behalf by him, delegate his powers to any other officer who is subordinate to him. (4) Notwithstanding anything contained in this section, an Appellate Authority shall not exercise the powers and discharge the duties conferred or imposed on any other officer of central tax." 25. It is evident from the bare perusal of section 3 of the Act, 2017 which is under Chapter II, the officer under this Act has been referred stipulating therein that the Government shall, by notification, appoint the following classes of officers for the purposes of this Act, namely:-- (a) Principal Chief Commissioners of Central Tax or Principal Directors General of Central Tax, (b) Chief Commissioners of Central Tax or Directors General of Central Tax, (c) Principal Commissioners of Central Tax or Principal Additional Directors G....
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....4 of the Act, 2017 confers power upon the Board in addition to the appointment which is to be made by the Government, the Board can also appoint officers under this Act. 28. It is evident from the notification dated 01st July, 2017, particularly from the tabular chart, in column-(2), the reference of Officers is there and in column-(3) Officers whose powers are to be exercised has been referred. It appears from sl. no. 4 that the Additional Director General, Goods and Services Tax Intelligence or Additional Director General, Goods and Services Tax or Additional Director General, Audit is an officer who has been authorized to exercise the power of Commissioner and from sl. No.7, the Deputy/Assistant Director, Goods and Services Tax Intelligence or Deputy/Assistant Director, Goods and Services Tax or Deputy/Assistant Director, Audit has been authorized to exercise the power of Deputy Commissioner/Assistant Commissioner. 29. This Court, therefore, is of the view that since the notification dated 01st July, 2017 has been issued in exercise of power conferred under Section 3 read with Section 5 under which the Board has been conferred with the power, in addition to appointment to be ....
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....cers, particularly in sl. No.3, the Deputy or Assistant Commissioner, Central Tax has been mentioned, who has been empowered to function as "Proper Officer" under sub-sections (1), (2), (3), (5), (6), (7), (9) and (10) of Section 74 of the Act. 33. Further, it would be evident from the Circular No.31/05/2018-GST dated 09.02.2018 issued by the Ministry of Finance, Department of Revenue, Central Board of Excise and Customs, Government of India, wherein at paragraph-5, pecuniary limit was fixed and specific power was provided to the Superintendent of Central Tax; Deputy or Assistant Commissioner of Central Tax; Additional or Joint Commissioner of Central Tax. For ready reference, paragraph-5 of the said circular is being referred as under : ... 5. Whereas, for optimal distribution of work relating to the issuance of show cause notices and orders under sections 73 and 74 of the CGST Act and also under the IGST Act, monetary limits for different levels of officers of central tax needs to be prescribed. Therefore, in pursuance of clause (91) of section 2 of the CGST Act read with section 20 of the IGST Act, the Board hereby assigns the officers mentioned in Column (2) of the Table b....
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....es Tax Intelligence (DGGI) holding the designation of Senior Intelligence Officer, who was appointed as the Central Tax Officer with all the powers under the CGST Act and IGST Act and the Rules made thereunder, as are exercisable by the Central Tax Officers of the corresponding rank of Superintendent as specified in the Notification No. 14 of 2017-CT dated July 1, 2017 issued by the Central Board of Excise and Customs. The Gujrat Haigh Court further observed that respondent No. 3 being the officer of the Central Tax and the Superintendent under the CGST Act by virtue of the said notification dated July 1, 2017, he was also assigned the powers of proper officer by the Board vide circular dated July 5, 2017 issued in exercise of the powers conferred by clause (91) of section 2 of the CGST Act read with section 20 of the IGST Act. For ready reference the relevant paragraph of the aforesaid judgment is quoted as under: "13. From the bare reading of section 70 of the CGST Act, it clearly emerges that the proper officer has the power to summon any person whose attendance he considers necessary either to give evidence or to produce the documents in any inquiry in the same manner in the ....
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.... by the learned counsel for the petitioner that Section 3 of the CGST, 2017 creates the class/post of officers and it clearly says that the Government by notification shall appoint the said class of officers for the purposes of the CGST Act. Further, Section 4 of the CGST Act, 2017 provides for appointment of officers/additional officers by the Board in addition to the notification by the Government under Section 3 of the CGST Act, 2017. Most significantly, Section 5 of the CGST Act, 2017 says that the Board may impose conditions/limitations on exercise of powers and discharge of duties conferred or imposed on an officer of central tax under the Act. It further says that an officer of central tax may exercise the powers and discharge the duties conferred or imposed under the GST Act on any other officer of central tax, who is subordinate to him. Section 5(3) of the CGST Act, 2017 says that the Commissioner may delegate his powers to any other officer who is subordinate to him subject to conditions and limitation as may be specified by him. Thus, it can be safely said that Section 5 of the CGST Act provides that any officer who has been so appointed must be assigned/entrusted/invest....
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....17, a Superintendent of Central Tax has been assigned the power to function as is mentioned in Sub-section (1) of Section 70 and a reading of Notification No. 14/2017 leads us to conclude as mentioned in Serial No. 8 that a Senior Intelligence Officer, Goods and Service Tax Intelligence or Superintendent, Goods and Services Tax or Superintendent, audit has been notified to be appointed under Section 3 of the GST Act as a central tax officer and is invested with all the powers under the Central Goods and ServiceTax Act, 2017, throughout the territory of India, as are exercisable by the central tax officers of the rank of "Superintendent". In any case, this Court does not find any force in holding that such technical nuances to be fatal for the notification or to the functions performed by various DGGI officers. The jurisprudence on the implications of invocation of a wrong provision suggests that as long as an authority has power, which is traceable to a source, the mere fact that source of power is not indicated or wrongly indicated in an instrument does not render the instrument invalid. 21. For all the aforesaid reasons, this Court is not inclined to hold that the impugned Noti....
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....cture/export. Respondent No. 2 was charged with misusing the Export Passbook Scheme by selling goods cleared duty free in the open market or selling the passbook on premium in violation of the ITC restriction imposed on such sale. Investigations in the matter were conducted by the Marine and Preventive Wing of the Customs and the Assistant Collector of Customs (Preventive), Mumbai, issued to the respondents a show-cause notice, alleging violation of the provisions of Section 111(d) of the Act. Later on, the same officer adjudicated upon the said show-cause notice, confirming the demands raised in the show-cause notice. Being aggrieved, the respondents preferred an appeal before the Collector of Customs (Appeals), which was allowed by holding that since the matter involved demand of duty beyond a period of six months, the show-cause notice was required to be issued by the Collector, and not by the Assistant Collector. However, the Collector (Appeals) granted liberty to the Department to readjudicate the case by issuing a proper show-cause notice. Accordingly, the Collector of Customs (Preventive) issued show-cause notice dated asking the respondents to show cause as to why the go....
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....n 2(34) of the Act is competent to issue notice under Section 28 of the Act. It has further been observed that only the officers of Customs, who are assigned the functions of assessment, which of course, would include reassessment, working under the jurisdictional Collectorate within whose jurisdiction the bills of entry or baggage declarations had been filed and the consignments had been cleared for home consumption, will have the jurisdiction to issue notice under Section 28 of the Act. 40. Thus, from the factual aspects of the said case it is evident that the matter pertains to the Customs Act, 1962 wherein the provision has been made under Section 2(34) giving definition of Proper Officer. For read reference, the same is being referred as under: "2. Definitions.- * * * (34) 'proper officer', in relation to any functions to be performed under this Act, means the officer of Customs who is assigned those functions by the Board or the Commissioner of Customs;" 41. It is evident from the aforesaid definition that the Proper Officer in relation to any functions to be performed under this Act, means the officer of Customs who is assigned those functions by the Board or the Commi....
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.... has to be designated as "proper officer" by assigning the function of levy and collection of duty, by the Board or the Commissioner of Customs. 46. This Court, after going through the aforesaid judgment and again adverting to the factual aspect of the present case, is of the view that the factual aspect of the aforesaid case is quite different to that of the present case since herein the issue pertains to the Act, 2017 while the said case is under the Customs Act, 1962. 47. The Proper Officer which has been defined under Section 2(34) of the Act, 1962 and comparing it with the provision of Section 2(91) of the Act, 2017, it would be evident that there is material difference since under Section 2(34), the Proper Officer means the officer of Customs who is assigned those functions by the Board or the Commissioner of Customs while the Proper Officer as defined under Section 2(91) of the Act, 2017 means the proper officer in relation to any function to be performed under this Act, means the Commissioner or the officer of the central tax who is assigned that function by the Commissioner in the Board. 48. The fact of the judgment relied upon by the learned counsel for the petitioners....
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....he aforesaid discussion that the ground which has been taken by the petitioner to quash the show cause notices due to want of jurisdiction is having no substance. 51. Accordingly, this Court is of the view that the Additional Director General, Goods and Services Tax Intelligence or Additional Director General, Goods and Services Tax or Additional Director General, Audit and the Deputy/Assistant Director, Goods and Services Tax Intelligence or Deputy/Assistant Director, Goods and Services Tax or Deputy/Assistant Director, Audit are having jurisdiction to issue show cause notices. 52. This Court, after answering the said issue and coming to the conclusion that the reference of the factual aspect has widely been discussed which is relevant with the consideration/appreciation of the factual aspect, as such, is of the view that it would not be just and proper to exercise the extraordinary jurisdiction conferred upon this Court to show interference with the show cause notices due to the settled position of law that the writ court should not interfere at the stage of issuance of show-cause notice by the authorities because the parties get ample opportunity to put forth their contentions....