Assistant Commissioner Lacked Jurisdiction Over DGGI GST Notice: Madras HC

Kay Arr Engineering Services Vs Assistant Commissioner of GST & Central Excise (Madras High Court)

The Madras High Court considered a writ petition challenging Order-in-Original No. 1/2024 dated 16.01.2025, whereby the proposal contained in Show Cause Notice No. 38/2024 GST dated 26.06.2024, issued by the Directorate General of Goods and Services Tax Intelligence (DGGI), was confirmed. The petitioner contended that the invocation of the extended period of limitation under Section 74 of the CGST Act, 2017 was inapplicable because the dispute arose from a bona fide classification of maintenance charges for wind-operated electricity generators under Sl. No. 234 of Notification No. 1/2017-Central Tax (Rate), whereas the Revenue alleged that the services were classifiable under Sl. No. 135 of the Fourth Schedule attracting a higher rate of tax. The petitioner also relied on an earlier High Court decision concerning composite assessment orders covering multiple assessment years.

The principal challenge, however, related to jurisdiction. The petitioner relied upon Notification No. 02/2017-Central Tax, as amended by Notification No. 02/2022 dated 11.03.2022 and Notification No. 27/2024 dated 25.11.2024, and argued that where notices are issued by the DGGI, only an officer of the rank of Additional Commissioner or Joint Commissioner is competent to pass the adjudication order. Since the impugned order had been passed by an Assistant Commissioner of GST & Central Excise, it was contended that the order lacked jurisdiction.

The respondents argued that the classification dispute involved questions of fact that should be decided by the appellate authority under Section 107 of the CGST Act and could not be examined in writ proceedings. On the issue of jurisdiction, they submitted that Notification No. 02/2017 continued to recognize the Assistant Commissioner as a proper officer and that the subsequent notifications merely conferred additional powers on higher-ranking officers without taking away the authority of Assistant Commissioners.

The Court examined Notification No. 02/2017-Central Tax dated 19.06.2017 and the amendments introduced through Notification No. 02/2022. It noted that Clause 3A and Table V inserted by the amending notification specifically vested Additional Commissioners or Joint Commissioners of Central Tax with the power to pass orders in respect of notices issued by officers of the DGGI under Sections 67, 73, 74, 76, 122, 125, 127, 129 and 130 of the CGST Act. The Court observed that the impugned show cause notice had been issued by the DGGI and, therefore, only an Additional Commissioner or Joint Commissioner was authorized to adjudicate it.

Holding that the Order-in-Original had been passed by the Assistant Commissioner contrary to Notification No. 02/2022, the Court concluded that the order suffered from procedural irregularity and was passed in violation of the applicable notification. Accordingly, the Court quashed the impugned order and remitted the matter for fresh adjudication by the competent authority in accordance with Notification No. 02/2017-Central Tax as modified by Notification No. 27/2024. The Court directed that the matter be decided on merits in accordance with law after granting the petitioner an opportunity of hearing. The writ petition was disposed of with these directions, and the connected miscellaneous petition was closed.

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FULL TEXT OF THE JUDGMENT/ORDER OF MADRAS HIGH COURT

The petitioner has challenged the Order-in-Original No. 1/2024 dated 16.01.2025 passed by the first respondent. By the impugned order, the proposal in Show Cause Notice No. 38/2024 GST dated 26.06.2024, issued by the second respondent (DGGI), has been confirmed.

2. The learned Senior Counsel for the petitioner would submit that the invocation of the extended period of limitation under Section 74 of the CGST Act, 2017 is not applicable to the facts of the case. It is submitted that the petitioner had bonafidely adopted the classification under S.No. 234 of the First Schedule to Notification No. 1/2017-Central Tax (Rate) (taxed at 5%, later revised to 12%) regarding maintenance charges for wind-operated electricity generators. The Revenue’s allegation that the petitioner suppressed facts to avoid a higher rate under S.No. 135 of the Fourth Schedule (taxed at 14% (CGST) is without merit, as the issue arises out of a bonafide interpretation of the classification entries.

3. Adverting to the issue of jurisdiction, the learned Senior Counsel would draw the attention of this Court to Notification No. 02/2017-Central Tax as amended by Notification No. 02/2022 dated 11.03.2022 and further amended by Notification No. 27/2024 dated 25.11.2024.

4. It is submitted that by virtue of the latest amendment, for notices issued by the DGGI, only an officer in the rank of Additional Commissioner or Joint Commissioner is competent to pass the adjudication order whereas in the present case, the impugned order has been passed by the Assistant Commissioner of GST & Central Excise, who lacks the jurisdiction to adjudicate notices issued by the second respondent.

5. The learned counsel for the petitioner further relied on the judgment of this Court in Titan Company Ltd vs. Joint Commissioner of GST (W.P. No. 33164 of 2023), wherein it was categorically held that the authorities cannot bunch multiple assessment years or pass composite orders in a manner that bypasses the individual limitation periods prescribed under the Act.

6. Per contra, the learned Senior Standing Counsel for the respondents would submit that the classification issue is a matter of fact to be adjudicated by the Appellate Authority under Section 107 and cannot be entertained in summary proceedings under Article 226 of the Constitution of India. On jurisdiction, he would refer to the parent Notification No. 02/2017 to argue that the Assistant Commissioner remains a “proper officer” for adjudication and that subsequent notifications only expanded the powers of higher-ranking officers without divesting the first respondent of his authority.

7. Notification No. 02/2017-Central Tax dated 19.06.2017 was issued in exercise of the powers conferred under Section 3 read with Section 5 of the Central Goods and Services Tax Act, 2017, and Section 3 of the Integrated Goods and Services Tax Act, 2017. By virtue of the said notification, the Central Board of Excise and Customs appointed the officers specified therein as “proper officers” and designated the Central Tax Officers subordinate to them, vesting them with all powers under the said Acts and the Rules framed thereunder, in respect of the jurisdiction specified in the table appended thereto, as follows:

“(a) Principal Chief Commissioners of Central Tax and Principal Directors General of Central Tax,

(b) Chief Commissioners of Central Tax and Directors General of Central Tax,

(c) Principal Commissioners of Central Tax and Principal Additional Directors General of Central Tax,

(d) Commissioners of Central Tax and Additional Directors General of Central Tax,

(e) Additional Commissioners of Central Tax and Additional Directors of Central Tax,

(f) Joint Commissioners of Central Tax and Joint Directors of Central Tax,

(g) Deputy Commissioners of Central Tax and Deputy Directors of Central Tax,

(h) Assistant Commissioners of Central Tax and Assistant Directors of Central Tax,

(i) Commissioners of Central Tax (Audit),

(j) Commissioners of Central Tax (Appeals),

(k) Additional Commissioners of Central Tax (Appeals)”

8. At the time of issuance of the above notification, there were four tables appended to it, as detailed below:-

9. Subsequently, the said notification was amended by Notification No.2/2022 — Central Tax dated 11.03.2022, whereby Clause 3A and Table V were inserted. By virtue of Clause 3A, inserted through the aforesaid amending notification, the Additional Commissioners or Joint Commissioners of Central Tax, subordinate to the Principal Commissioners of Central Tax or Commissioners of Central Tax, were vested with the powers specified in the corresponding entry under Column (3) of Table V.

10. Table V, as extracted from the amending notification, reads as follows:-

TABLE V

Powers of Additional Commissioner or Joint Commissioner of Central Tax for passing an order or decision in respect of notices issued by the officers of Directorate General of Goods and Services Tax Intelligence.

11. Thus, in respect of notices issued by officers of the Directorate General of Goods and Services Tax Intelligence (DGGI), namely the second respondent herein, only the Additional Commissioner or Joint Commissioner of Central Tax has been notified / designated to pass orders.

12. However, the impugned Order—in-Original No.1/2024-GST dated 16.01.2025 has been passed by the first respondent, which is clearly contrary to Notification No.2/2022 — Central Tax dated 11.03.2022. Therefore, the impugned order suffers from procedural irregularity and has been passed in violation of the aforesaid notification.

13. Therefore, the impugned order is liable to be quashed and accordingly, the same is quashed and the case is remitted back to pass a fresh order by any competent authority as per Notification No. 02/2017-Central Tax dated 19.06.2017 modified by Notification No. 27/2024 dated 25.11.2024 on merits and in accordance with law, as expeditiously as possible, in terms of the aforesaid notification and by exercising jurisdiction thereunder.

14. Needless to state, before passing the final order, an opportunity of hearing shall be afforded to the petitioner.

15. This Writ Petition stands disposed of with the above observations. No costs. Connected Writ Miscellaneous Petition is closed.