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2022 Supreme(Online)(Sikk) 64
HIGH COURT OF SIKKIM
Biswanath Somadder, CJ, Meenakshi Madan Rai, J
Commissioner Of Central Excise & Service Tax Siliguri Commissionerate – Appellant
Versus
Perfect Technologies – Respondent
Tax App. No. 01/2019|CO No. 01/2022
For the Appellants/Petitioners: Sudipto Mazumdar, Dilip Kumar Agarwal
For the Respondents: Aditya Dutta, Gita Bista
A jurisdictional challenge regarding the authority of the adjudicating officer is a threshold issue that must be specifically addressed and decided by the appellate tribunal before a final decision on the merits of a tax appeal can be rendered.
Headnote:This matter concerns a statutory Tax Appeal filed by the Commissioner of Central Excise & Service Tax and a cross-objection filed by the respondent. The primary issue pertains to whether the Commissioner who passed the original adjudication order lacked the requisite jurisdiction to exercise authority under the Central Excise Act, 1944. The Court noted that the Customs, Excise and Service Tax Appellate Tribunal had failed to address the specific plea regarding the adjudicating officer's lack of jurisdictional competence in the impugned order. The core issue is whether an order passed by an officer lacking delegated authority is void ab initio. The Court reasoned that jurisdictional validity is a fundamental requirement for the exercise of quasi-judicial power. The Court invoked its power to direct the Tribunal to decide this threshold issue before proceeding with the merits of the appeal, emphasizing that specific submissions regarding jurisdictional competence must be formally addressed and adjudicated upon by the appellate body. The Court disposed of the cross-objection with a direction to the Tribunal to decide the issue of jurisdictional validity within four months, keeping the main tax appeal pending in the interim.
Date: 25/08/2022 CORAM:HON’BLE MR. JUSTICE BISWANATH SOMADDER, CHIEF JUSTICE HON’BLE MRS. JUSTICE MEENAKSHI MADAN RAI, JUDGE …O R D E R: (per the Hon’ble, the Chief Justice)
The instant statutory Tax Appeal was initially admitted on the substantial questions of law as framed by the Court in its order dated 07th October, 2020. During pendency of the Appeal, a cross-objection was filed by the respondent. Since there was a delay in filing of the same, this Court, after considering the submissions made by the learned advocates for the parties and upon perusing the application for condonation of delay, allowed the same and condoned the delay in filing of the cross-objection, which was brought on record in terms of the order dated 04th August, 2022. By another order dated 04th August, 2022, passed in Tax Appeal No. 01 of 2019, this Court directed that both, the appeal along with the cross-objection filed by the respondent, would be taken up for consideration under an appropriate heading on Thursday, 25th August, 2022.
Today, when both matters are taken up for consideration, we notice that the primary contention of the respondent — as pleaded in the cross-objection — is with regard to the lack of jurisdiction of Shri C.M. Mehra, to pass the original order of adjudication in his capacity as the Commissioner of Central Excise & Service Tax, Siliguri, at the material point of time. We further notice that when the two connected service tax appeals were initially taken up for consideration by the Customs, Excise and Service Tax Appellate Tribunal, East Regional Bench, Kolkata, a stay order was passed on 08th July, 2008, wherein the learned Tribunal waived the requirement of predeposit in respect of both the Service Tax Appeals No. 311-312/2008, primarily on three grounds, one of which reads as follows: -
“ (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 having been appointed to and vested with such jurisdiction by the Board. Consequently, the impugned Order passed by him under the Service Tax Statute also prima facie appears to have been passed without having the necessary jurisdiction. ”
From the records we also notice that subsequently the respondent, M/s Perfect Technologies, had filed an application before the learned Customs, Excise and Service Tax Appellate Tribunal, East Regional Bench, Kolkata, seeking inclusion of additional grounds in the appeal, which, inter alia included the following ground: -
“ 5. The applicant further submits that there was no 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 Central 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 & Service 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 dated 30.06.08, that Shri Mehra lacked jurisdic
