ASHOK BHUSHAN,J - (1.) WE have heard Shri A.K. Jain assisted by Shri Rajeev Chaddha and Shri Rajesh Jain for the petitioner, Shri Vishwajeet Bhattacharya, Additional Solicitor General of India and Shri S.P. Kesarwani for the respondents. This writ petition questions the jurisdiction of Additional Director General, Directorate General of Central Excise, Intelligence in issuing show cause notice dated 01/10/2009 to the petitioner initiating proceedings for determining the liability under Section 11A and other provisions of the Central Excise Act, 1944 (hereinafter called the "Act, 1944") and the Central Excise Rules, 2002 (hereinafter called the "2002,Rules"). The writ petition raises the issue pertaining to interpretation of Section 2(b) of the Act,1944 and Rule 3 of 2002, Rules.
(2.) THE facts of the case which need to be briefly noted for deciding the issues of the writ petition are: The petitioner was engaged in the manufacture and clearance of Gutkha and Pan Masala bearing "SIR" brand name. During the year 2007-08, search and seizure were carried out at the premises of the petitioner as well as at places of transporters, distributors etc. by the officers of the Directorate General of Central Excise, New Delhi which was followed by recording of statements of various persons. A show-cause notice dated 01/10/2009, under Section 11-A of the Act, 1944 was issued by one Dr. Devender Singh, Additional Director General, Directorate General of Central Excise Intelligence asking the petitioner to show cause to the Commissioner, Central Excise, Kanpur within 30 days as to why the duty, penalty and interest be not imposed. Petitioner's case in the writ petition is that the Board i.e. i.e. Central Board of Excise and Customs by letter dated 03/12/2009, replying an application under the Right to Information Act, 2005 informed that Dr. Devender Singh was posted as Additional Director General, DGCEI, New Delhi vide Office Order dated 14/5/2009. The petitioner claims to have filed interim reply as well as further interim preliminary objections before the Commissioner of Central Excise, Kanpur. One of the objection taken by the petitioner before the Commissioner of Central Excise was that the appointment of Dr. Devender Singh has not yet been notified in the Official Gazettee, hence he had no authority and jurisdiction to issue show cause notice dated 01/10/2009 to the petitioner. The Commissioner also noted the objection of the petitioner in the proceedings dated 25/2/2011. Objections of the petitioner as noted in the proceedings were that the show cause notice issued to the petitioner has not been signed by the competent authority. No approval was sought by the Additional Director General, Directorate General of Central Excise Intelligence from the Adjudicating Authority for issuing the show cause notice. The petitioner has come up in the writ petition praying for quashing the show cause notice dated 01/10/2009, alleging it to be without jurisdiction. A writ of prohibition has been sought restraining the respondents from taking any coercive steps against the petitioner. Learned counsel for the petitioner contends that Dr. Devender Singh, Additional Director General, Directorate General of Central Excise Intelligence had no jurisdiction to issue the show cause notice dated 01/10/2009 under Section 11A of the Act, 1944. It is submitted that Dr. Devender Singh, is not a "Central Excise Officer" within the meaning of Section 2(b) of the Act, 1944. It is further submitted that no notification regarding appointment of Dr. Devender Singh, Central Excise Officer has been published in the Official Gazettee as required by the Rule 3(1) of the 2002, Rules. It is submitted that as per 2002 Rules, the appointment of Central Excise Officer by Central Board of Excise and Customs can be made only by a notification which is required to be published in the Official Gazettee as per Rule 2(f) of the 2002, Rules and no notification of appointment of Dr. Devender Singh as a Central Excise Officer having been published in the Official Gazettee he had no jurisdiction to issue the show cause notice and it is liable to quashed on this ground alone. It is further submitted that Dr. Devender Singh, Additional Director General, who had issued the show cause notice has asked the petitioner to show cause to the Commissioner Central Excise, Kanpur which clearly indicates that he had no jurisdiction to issue show cause notice he being not the adjudicatory authority. It is submitted that if the notice was to be issued by the authority other than the adjudicatory authority, prior approval of the adjudicatory authority was required to be taken before issuance of the show cause notice. It is further submitted that the notice was unsigned. Learned counsel for the petitioner in support of his submission has placed reliance on the judgment of the Gauhati High Court in Central Excise Appeal No. 7/2009, The Union of India and Anr Vs. M/s Khusi Aromatics and Ors , dated 04/6/2010, wherein the Division Bench of the Gauhati High Court while considering Section 2(b) of the Act, 1944 and Rule 3 of the 2002 Rules, held that the notification appointing a person as a Central Excise Officer is required to be published in the Official Gazettee and when there was no publication of the appointment of Shri Amar Singh, Chief Commissioner, Central Excise, Ranchi Zone as Commissioner Central Excise, Shillong he had no authority to participate in the proceeding and such decision was vitiated as nonest. Learned counsel for the petitioner further submits that against the order of the Gauhati High Court, Union of India had filed a Special Leave to Appeal (Civil) Nos. 7681-7683/2011 in which although the leave was granted on 23/1/2012, but no stay has been granted. He submits that the judgment of the Gauhati High Court in the case of The Union of India & Anr Vs. M/s Khusi Aromatics & Ors (supra) is fully attracted in the facts of the present case and the appointment of Shri Devender Singh having not been notified as Central Excise Officer under Rule 3(1) of the 2002, Rules, he had no authority to issue the impugned show cause notice.
(3.) SHRI Vishwajeet Bhattacharya, Additional Solicitor General of India appearing for the respondents refuting the submission of the learned counsel for the petitioner contended that the Additional Director General, Directorate General of Central Excise Intelligence was a Central Excise Officer and fully entitled to issue show cause notice under Section 11-A of the Act, 1944. It is submitted that the Board had already issued notification dated 26/6/2001, in exercise of power under Section 2(b) of the Act, 1944 read with sub-rule (1) of Rule 3 of the Central Excise Rules, 2001, appointing the officers specified in Column 2 as Central Excise Officer and investing them with all the powers, to be exercised by them throughout the territory of India, in which Additional Director General, Directorate General of Central Excise Intelligence was specified as Commissioner, Central Excise hence he was fully competent to issue the impugned show cause notice. It is further submitted that there was no necessity for publication of notification dated 26/6/2001 in the Gazettee. He submits that the 2002, Rules saves the things done under the 2001 Rules, hence investing them with all the powers by notification dated 26/6/2001 continues to operate and the submission that Devender Singh had no jurisdiction to issue the show cause notice is in correct. He submits that the Additional Director General, Directorate General of Central Excise Intelligence /Commissioner, Central Excise had every jurisdiction to issue the show cause notice and no prior approval of the adjudicatory authority was required. He further submits that there is no challenge to the notification dated 26/6/2001, in this writ petition, thus, the competence of Additional Director General, Directorate General of Central Excise Intelligence to issue notice as Commissioner of Central Excise cannot be challenged or entertained in this writ petition. We have considered the submissions of the learned counsel for the parties and have perused the record. Before we proceed to consider the submission of the learned counsel for the parties, it is necessary to refer to relevant provisions of the Act, 1944 and the rules framed thereunder and the relevant statutory changes brought from time to time. The definition of Central Excise Officer is contained in Section 2(b) of the Act, 1944. Section 2(b) of the Act, 1944 earlier to its substitution by the Finance Act, 1995 was to the following effect: "2.Definitions.- In this Act, unless there is anything repugnant in the subject or context,- (a) ............................ (b) "Central Excise Officer" means any 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 with any of the powers of a Central Excise Officer under this Act;" The above definition of the "Central Excise Officer" was amended and the definition as it exists today as well as at the relevant time is as follows: "2.Definitions.- In this Act, unless there is anything repugnant in the subject or context,- (a)............................... (b) "Central Excise Officer" means the Chief Commissioner of Central Excise, Commissioner of Central Excise, Commissioner of Central Excise (Appeals), Additional Commissioner of Central Excise, Joint Commissioner of Central Excise, Deputy Commissioner of Central Excise, Assistant 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 a Central Excise Officer under this Act;" ;