Debangsu Basak, J. - (1.) The petitioner has challenged the vires of Rule 5A(1) of the Service Tax Rules, 1994. The petitioner has also assailed the action taken by the respondent no. 2 particularly the Summons dated July 17, 2015 and June 8, 2016 and the letter dated June 22, 2016.
(2.) Learned Advocate for the petitioner has submitted that, Rule 5A(2) of the Service Tax Rules, 1994 has been declared ultra vires once. Such a Rule was amended subsequently. The amended Rule is presently under challenge. He has referred to Section 82 of the Finance Act, 1994 and submitted that, the power to search a premise is laid down therein. The Service Tax Rules, 1994 is a subordinate legislation and is subservient to Section 82 of the Finance Act, 1994. He has also referred to Section 14 of the Central Excise Act, 1944 and has submitted that, a Central Excise Officer duly empowered by the Central Government, is entitled to exercise the power of summoning any person to give evidence or to produce a document or for any other purpose in any enquiry which such officer is making for any of the purposes of the Act of 1944. He has submitted that, in the facts of the present case, there was no enquiry pending and that, an appropriate officer did not form an opinion requiring a search and seizure to be carried out at the premises of the petitioner. He has submitted that, a group of officers claiming to be authorised by the respondent no. 2 had visited the premises of the petitioner at Kolkata on July 17, 2015. A section of the officers were from the office of the Kolkata Directorate General of Central Excise Intelligence and the balance officers were from Chennai Directorate General of Central Excise Intelligence. He has referred to the writing dated July 17, 2015 issued by the officers of the respondent no. 2 and has submitted that, although the officers of the respondent no. 2 were present at the premises of the petitioner at Kolkata, none the less, such officers had required the petitioner to present documents at the Chennai office of the respondent no. 2 at 15:00 hours on the same day. He has submitted that, the action of the officers from the Chennai office of the respondent no. 2 is wholly without jurisdiction as, the petitioner is assessed at Kolkata and that, the Kolkata office has jurisdiction over the premises of the petitioner as well as the petitioner. He has submitted that, the officers of the respondent no. 2 had continued with the illegal action despite the protest in writing by the petitioner. He has referred to the affidavit-in-opposition of the respondent no. 2 and has submitted that, there are contradictions between the affidavit used on behalf of the respondent no. 2 and the respondent no. 1. He has referred to the Master circular dated March 10, 2017 and has submitted that, the authorities have acted beyond the provisions of such Master circular in carrying out a search and seizure at the premises of the petitioner at Kolkata.
(3.) Relying upon (General Officer Commanding-in-Chief & Anr. v. Dr. Subhash Chandra Yadav & Anr., 1988 2 SCC 351) learned Advocate for the petitioner has submitted that, a Rule made beyond the Rule-making power is invalid. He has referred to (Mega Cabs Pvt. Ltd. v. Union of India,2016 SCCOnline 3630 (Del)) and submitted that, sub-rule (2) of the Service Tax Rules, 1994 has been declared ultra vires by the Delhi High Court. He has submitted that, sub-rule (1) of the Service Tax Rules, 1994 gives unbridled power and is excessive and beyond the Rule-making power of the authorities. Such sub-rule travels beyond Section 82 of the Finance Act, 1994. The purpose of Section 82 of the Finance Act, 1994 and that of Rule 5A of the Service Tax Rules, 1994 are different. Rule 5A of the Service Tax Rules, 1994 allows a senior officer to exercise a power given thereunder while Section 82 of the Finance Act, 1994 allows an officer subordinate to him to exercise such power. There are marked differences between the provisions of Section 82 of the Finance Act, 1994 and Rule 5A of the Service Tax Rules, 1994. On the parity of reasoning as of Mega Cabs Pvt. Ltd. sub-rule (1) of Rule 5A of the Service Tax Rules, 1994 should also be declared ultra vires.;