Are Superintendents not Central Excise Officers?
ELEMENTARY, my dear Watson? Not Exactly!
In an order relating to admissibility of deemed credit under Notification No 58/97-Central Excise dated 30.8.1997, the Tribunal has passed strictures against the Superintendent of Central Excise for certifying the duty paid by the assessee operating under Section 3A of the Central Excise Act, 1944. The Tribunal observed:
It is strange how a Superintendent could issue the certificates available on record which were relied upon by the appellant for the claim of deemed credit. Perusal of the definition of Adjudicating Authority under section 2(a) and definition of Central Excise Officers appearing in section 2(b) of Central Excise Act 1944 does not appear to have recognised a Superintendent as Adjudicating Authority or Central Excise Officer. He was not competent to issue the certificate relied upon by the appellant for no prescription in law. There is no Notification available on record to appreciate that he is an officer authorised by section 2 (b) of Central Excise Act 1944 under Central Board of Revenue Act, 1963. If such an Officer is not competent and recognised by law to issue certificate the department should take action against the Officer those who issue the certificates not recognised by law. Ld. CDR is requested to send a copy of this order to the Jurisdictional Commissioner where the Superintendent is working, for appropriate action. So also the Board may be intimated for appropriate redressal if any required.
The above observation brings into focus the question as to whether any separate notification is required to authorise a Superintendent as “Central Excise Officer” under Section 2(b). The provisions of Section 2(b) read as under:
(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, Assistant Commissioner of Central Excise or Deputy 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;]
Now the point is whether any other officer of Central Excise should also be invested with the powers of Central Excise to recognise him as an officer of Central Excise. Obviously there seems to be some confusion as to whether the requirement of being invested with powers is only with regard to any person appearing before the last line or is it also applicable to the any other officer of Central Excise?
Further, the Tribunal holds that a Central Excise Superintendent is not recognized as an Adjudicating Authority as per Section 2(a) of the Act.
Section 2(a) reads as,
“Adjudicating authority” means any authority competent to pass any order or decision under this Act, but does not include the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963 (54 of 1963), Commissioner of Central Excise (Appeals) or Appellate Tribunal”
This section does not specify any officer by designation as an adjudicating authority and if the Superintendent is not an adjudicating authority, even the Commissioner is not.
In any case, Board by Circular No. dated 18.05.2010 had decided to confer the power of adjudication on Superintendents for cases involving duty upto Rs. 1 Lakh in a show cause notice, except in respect of issues involving rate of duty and valuation or where extended period of limitation has been involved.
So, the Superintendent of Central Excise is both a Central Excise officer and an Adjudicating Authority, but the tribunal wants action to be taken against the Superintendent for issuing a certificate.
In fact, the Board had way back in 1995, in Circular No. dated 06/04/95 directed Range Superintendents to issue certificate of non-availment of Modvat Credit and further clarified this in Circular No. dated 04/10/95.
The Board in Circular No. dated 20.02.2002, directed that even though there is no provision in the Central Excise Rules or in the Central Excise Manual to issue certificate of proof of payment of duty, such certificates may be issued by Superintendents as a trade facilitation.
Yet, the Tribunal wants action against the Superintendent for issuing a certificate, as he is neither a Central Excise Officer, nor an Adjudicating Authority.
In Pahwa chemicals - , the Supreme Court held, “the Superintendent had jurisdiction to issue Show Cause Notice” [even though in this case, the Board Circular was against such action]
In Aeon's Construction Products - , the Supreme Court reiterated this view.
A Central Excise Superintendent has the power to summon any person and the summoned person is bound to attend; He had the power to issue Show Cause Notices; he has the power to adjudicate; he has the power to arrest; he had the power to issue and renew licences; he was an assessing officer. How can he do all these without being a Central Excise officer?
Yet, the Tribunal wants action against the Superintendent for issuing a certificate as he is neither a Central Excise Officer, nor an Adjudicating Authority.
And if they are not Central Excise officers, what are 15000 Superintendents doing in the Department? Maybe the Department should promote all the Superintendents as Deputy Commissioners and all the Inspectors as Assistant Commissioners as part of the cadre review, so that they are recognised as Central Excise officers!
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