LAWS(JHAR)-2012-7-294

COMMISSIONER OF CENTRAL EXCISE, JAMSHEDPUR Vs. TRF LTD.

Decided On July 27, 2012
COMMISSIONER OF CENTRAL EXCISE, JAMSHEDPUR Appellant
V/S
Trf Ltd. Respondents

JUDGEMENT

(1.) Heard counsel for the parties. The Revenue is aggrieved against the dismissal of their Service Tax Appeal No. 118/2008 by Customs, Excise and Service Tax Appellate Tribunal, East Zone, Kolkata [2009 (13) S.T.R. 557(Tri.-Kol.)]. The brief facts of the case as stated in the decision of the Committee constituted under Section 86(1)(1A)(i) of the Finance Act, 1994, are that a direction was issued to the Department to prefer appeal before the Appellate Tribunal in the matter of case No. 16/ST/Cornmr./08, dated 31-3-2008 passed by A.K. Misra, Commissioner, Central Excise, Jamshedpur and after review of the facts of the case, it was opined that it is a fit case where the Department should prefer appeal before the Tribunal. The relevant facts which were considered by the said Committee are that M/s. TRF Ltd. was rendering service under the categories of Consulting Engineers Service, Commissioning & Installation Services, Repairs & Maintenance Services, Construction Services and Goods Transport Services and a show cause notice dated 13-12-2006 was issued to the assessee for having short-paid the service tax amounting to Rs. 12,63,86,088/- and Education Cess amounting to Rs. 17,81,737/-, totalling Rs. 12,81,67,825/- by way of suppression of correct taxable value in violation of the provisions of Sections 67 and 68 of Chapter V of the Finance Act, 1994, read with Rule 6 of the Service Tax Rules, 1994, during the period 2003-04 and 2004-05 relying on the segment reports of the balance sheets of the period 2003-04 and 2004-05. The assessee submitted reply to the show cause and after considering the reply, the Committee was of the view that it is a fit case for preferring appeal against the said order dated 31-3-2008 passed by the Commissioner, Central Excise, Jamshedpur, in response to the assessee's case.

(2.) The appeal preferred by the Revenue was dismissed by the order of the Tribunal dated 23-9-2008 (it appears that the order was pronounced by the Tribunal on 16-9-2008 as mentioned in the last line of the first page of the certified copy of the order but the reasoned order was given on 23-9-2008). The Tribunal held that no notification published in the Official Gazette, appointing either Sri Amar Kumar Singh or Sri R.N. Vittal Dass as Chief Commissioner of Central Excise for Ranchi and Bhubaneswar Zones, had been produced. However, two office orders - Office Order No. 186/2007, dated 26-7-2007 in respect of Sri Amar Kumar Singh and another Office Order No. 85/2008, dated 29-4-2008 in respect of Sri P.N. Vittal Dass, were produced but the Department had not produced any notification published in the Official Gazette appointing either of them as Chief Commissioner of Central Excise. The Tribunal also observed that "In the meantime, in the absence of any Gazette Notification appointing the two signatories to the impugned Review Order as Chief Commissioners of Central Excise following our earlier Order in the case of M/s. Nafar Chandra Jute Mills , we have no option but to hold that the direction to file the present Appeal has been issued without having the necessary statutory power and jurisdiction and the same is, therefore, non est in the eyes of law".

(3.) In view of the above reasons, the question for consideration before us is whether the order to Revenue to prefer appeal passed by the said Committee constituted under Section 86(1)(1A)(i) of the Finance Act, 1994, was proper or not?