NOVEMBER 29, 2014

By Abhijit Saha

THE leading English case of R v Sussex Justices, ex parte McCarthy ([1924] 1 KB 256, [1923] All ER Rep 233) brought into common parlance the oft-quoted aphorism "Not only must Justice be done; it must also be seen to be done".

Recently it is observed in various CESTAT benches that the order is pronounced or passed without considering the submissions made by the appellant or the respondent. Anybody reading the order may take a view that the counsel appearing for the appellant / respondent has not argued properly and many a valid line of arguments have not been presented before the CESTAT for consideration and accordingly the competence of the said counsel is questioned. However, the ground reality is different. The Counsel may have argued effectively on such legal points but the order does not report such submissions. And, therefore, one fails to know the truth and also fail to comprehend as to whether the arguments were weighed by the Bench before passing of the order.

In this respect it is pertinent to mention that the order-in-original or the order of the Commissioner (Appeals) has a very good system of reproducing the submissions of the appellant as well as the respondent in the body of the order before the final observation of the adjudicating authority or the appellate authority is made. In fact, the department asks for the soft copy of the submissions before the order is passed so that the same is reproduced in the order itself. Such an order is also an evidence of the submissions made and the stand taken by the original/appellate authority. Resultantly, it satisfies being called a speaking order.

In the case of CESTAT orders such practice is not followed as a thumb rule. As a result there is no consistency and some times the order may also run into half page or one page. In any case one cannot make out by reading the order as to whether the said order is a speaking order or non-speaking order. It is only the party to the proceedings who will know as to whether it is a speaking order or not. The person who will read the said reported order may not realise whether it is a speaking order or not.

In view of the above, author humbly suggests that for the sake of equity and justice, the submissions of the appellant and respondent should be mandatorily recorded in the CESTAT order. This can be done by asking the party to submit the soft copy of the summary of their arguments which should be mandatorily incorporated in the order itself. The operative part of the order may be pronounced in the open court after the hearing if the judges deem it fit. Such transparency in judicial pronouncements would bring in certainty and consistency in the understanding of the tax laws.

(The author is Director (Indirect Tax), BDO India)