TIOL-DDT 2700
08 10 2015
Thursday

DURING the last six years, she has been a crusading warrior for the Revenue in CESTAT, Chennai. We have reported more than 400 cases in which she argued for the department. While she was fighting the cause of revenue in the CESTAT for the Government, she was fighting a personal battle against the department at several levels including the Central Administrative Tribunal (CAT). She has been a charged officer for nearly two decades and denied her promotions, with many of her batch mates and juniors already working as Additional Commissioners.

Meet Indira Sisupal, the lone lady fighter against the might of the State. She joined the Customs Department as an appraiser in 1986. Recently the CAT delivered an order in her case, the details of which briefly are:

Major penalty proceedings under Rule 14 of the CCS (CCA) Rules, 1965 were initiated against the Applicant, Indira Sisupal, Appraising Officer (now Assistant Commissioner) by the Disciplinary Authority (DA) vide 3 charge-memos dated 29.10.1997,31.10.1997 and 31.10.1997 for allegedly allowing duty free clearances of man made fabrics which were misdeclared as ‘fabrics of all types' in respect of certain Bills of Entry causing a loss of revenue of approximately Rs. 31 lakhs and for clearing MMF vide two other B/Es though the importer had license for duty free import of only cotton fabrics, thus resulting in a revenue loss of Rs. 11 lakhs approximately.

The Inquiry Officer in his reports dated 10.6.2002 found that most of the charges against her were proved. One of the charges proved was that she had failed to exercise effective supervisory control over her subordinate so as to ensure his devotion to duty and she had partially contravened Rule 3(2)(i) of CCS (Conduct) Rules, 1964.

The Disciplinary Authority vide the impugned order No. 36/2013 dated 8/11 November 2013 imposed the penalty of reduction in pay by two stages for a period of 3 years without cumulative effect and not adversely affecting the pension. This is challenged as illegal.

The Applicant has submitted that along with her, another Appraising Officer and her immediate subordinate, an Examiner were also proceeded with independently by way of disciplinary proceedings. In the common inquiry on all the 3 charge-memos, the documents as per Annexure III of charge-memo which were taken on record were not given to the Applicant. The sole Departmental witness was incompetent for the purpose of proving the contents of the documents as he was not the author of those. No opportunity was given to the Applicant to cross examine the sole prosecution witness. Vide memorandum dated 26.02.2004, the Respondent Department forwarded the IO's Report dated 10.06.2002 as well as the CVC's advice dated 23.12.2003 to the Applicant to submit her further explanation. On 18.07.2005, the Applicant gave a detailed explanation to the IO's Report stating that at no stage there was any attempt to clear the goods other than what was mentioned in the Bill of Entries and that there was no doubt or suspicion with regard to the D.E.C. entries and that the examination was done as per the prevalent procedures in place and there was no deviation of the same. The IO did not find any malafide intention or motivated omission in the alleged lapse on the part of the Applicant or by her subordinates.

The Applicant further submitted that minor penalty proceedings were initiated against her separately under Rule 16 of CCS CA Rules on 12.02.2004 wherein an order was issued on 17.08.2011 imposing a penalty by reduction to a lower stage in the time scale of pay by one stage for a period of three years, without cumulative effect. The Applicant filed OA No. 1354 of 2011 challenging the imposition of penalty by the order dated 17.08.2011, primarily on the ground of delay.

The Applicant also filed OA No. 1353 of 2011 challenging the order dated 27.11.2011 whereby her request for regularization of services as Assistant Commissioner and further promotion to the post of Deputy Commissioner, Joint Commissioner and Additional Commissioner on par with her juniors was denied.

The Central Administrative Tribunal vide order dated 27.03.2013 (2013-TIOL-05-CAT), allowed both the OAs. As regards OA No. 1353 of 2011, the Tribunal observed that the Respondent had been harassing the Applicant by not granting her promotion citing the long pendency of the disciplinary proceedings. The order dated 27.07.2011 was set aside with a direction given to the Respondents to regularize the services of the Applicant in the grade of Assistant Commissioner and also to take further steps to promote the Applicant to the grade of Deputy Commissioner, Joint Commissioner and Additional Commissioner on par with her juniors. In OA No. 1354 of 2011, the minor penalty order dated 17.08.2011 was set aside on the ground that the charge was vague and also for inordinate and unexplained delay in initiating and concluding the enquiry. It was observed that there was no evidence to sustain the finding of guilt and that there was extreme and unreasonable delay in the initiation and conclusion of the said proceedings. Against the order passed in OA No. 1353 of 2011, the Respondents have filed WP No. 22268 of 2013 before the High Court of Madras wherein an interim stay has been granted to the Tribunal's order.

Some submissions of the applicant:

The disciplinary proceeding was initiated after a delay of more than 4½ years from the date of the alleged event and it has taken 16 years for the conclusion of the same which has gravely prejudiced her inasmuch as her career prospects were marred beyond repair.

On the plea of sealed cover procedure, she has not been considered for promotion from 1997, that is for nearly 17 years for an issue which was dropped on merits for all Docks Officers and accepted by the Govt. of India on file.

She has had to suffer the indignity of working under her subordinates.

She has had a chequered career with her commendation certificate 2002 by the Chief Commissioner of Central Excise, Chennai, where a duty evasion of over 200 crores was detected with all India repercussions. Rewards were proposed way back in 2002. In the latest ACR of 2012-2013 her performance has been rated as 9.7 out of 10 in grading with remark that the Applicant performed her duties in an outstanding manner despite the constraints.

The punishment was shockingly disproportionate to the charges.

She has otherwise had an unblemished service career and secured outstanding/excellent/very good gradings in the last 13 years of her service as an Assistant Commissioner.

She has effectively represented the Department before the CESTAT and was also instrumental in detecting many duty evasions and frauds which prevented revenue loss to the Government of India. Her performance as Assistant Commissioner has been appreciated time and again with commendation certificates.

CAT Order dated 20 07.2015:

The Applicant has failed to demonstrate how the delay caused prejudice to her in the defence of her case. The plea of the Applicant that the impugned order ought to be quashed only on the ground of delay in initiating the proceedings or concluding them, cannot be accepted.

In the facts and circumstances of the case, the impugned order of the Disciplinary Authority is set aside and the matter remitted to the Disciplinary Authority to pass orders afresh in the departmental proceedings having regard to the submissions of the Applicant in the OA including the contention that the penalty imposed was disproportionate to the acts of alleged omission on her part, and the discussion and observations made in this order.

So, the case is back with the disciplinary authority and the saga continues. When we heard last, Indira Sisupal was transferred from CESTAT, Chennai to Mysore – hopefully that examiner over whom she failed to exercise supervisory control is not her boss.

Please see 2015-TIOL-03-CAT.

It may be interesting to see this:

Income Tax - How do you measure Distance?

HOW do you measure the distance from a municipal town to an agricultural land? Is it as the crow flies or as a man walks?

"Agricultural Land" is excluded from the definition of capital asset as per section 2(14)(iii) of the Income-tax Act based,  inter-alia, on its proximity to a municipality or cantonment board. The method of measuring the distance of the said land from the municipality, has given rise to considerable litigation. Although, the amendment by the Finance Act, 2013 w.e.f. 01.04.2014 prescribes the measurement of the distance to be taken aerially, ambiguity persists in respect of earlier periods.

The Nagpur Bench of the Bombay High Court in a case reported as   2015-TIOL-1159-HC-MUM-IT has held that the amendment prescribing distance to be measured aerially, applies prospectively i.e. in relation to assessment year 2014-15 and subsequent assessment year. For the period prior to assessment year 2014-15, the High Court held that the distance between the municipal limit and the agricultural land is to be measured having regard to the shortest road distance.

The CBDT informs that the High Court judgement has been accepted and the disputed issue has not been further contested.

Board informs the field that being a settled issue, no appeals may henceforth be filed on this ground by the officers of the Department and appeals already filed, if any, on this issue before various Courts/Tribunals may be withdrawn/ not pressed upon.

CBDT Circular No.17/2015, Dated: October 06, 2015

FTP - Export Policy of Rice - Restricted

GOVERNMENT has amended the Chapter 10 of Schedule 2 of ITC(HS) Classification of Export & Import Items to move Export of rice of seed quality from ‘Free' to 'Restricted' category.

DGFT Notification No.23/2015-20., Dated: October 07, 2015

 CENVAT Credit - Rule 6(6) Benefit to apply to Exempted Ethanol

BY Notification No. 32/2015-CE dated 04.06.2015, Government had exempted Ethanol produced from molasses generated from cane crushed in the sugar season 2015-16 i.e. 1st October, 2015 onwards, for supply to the public sector oil marketing companies, namely, Indian Oil Corporation Ltd., Hindustan Petroleum Corporation Ltd. or Bharat Petroleum Corporation Ltd., for the purposes of blending with petrol.

As is well known, as per CENVAT Credit Rules, if the Final Products are exempted:

1. Credit is not allowed on the inputs used in the manufacture of exempted goods;

2. If credit is taken on dutiable and exempted goods, separate accounts have to be maintained;

3. If no separate accounts are maintained, an amount of six per cent has to be made on exempted goods;

4. No credit will be allowed on capital goods used exclusively for manufacture of exempted goods.

The above provisions are not applicable when the goods are

1. Cleared to SEZs

2. Cleared to 100 per cent EOUs

3. Cleared to EHTP or STP

4. Supplied to UN

5. Supplied for use of foreign Diplomatic Missions

6. Cleared for export under bond

7. Gold or silver arising in the manufacture of copper or zinc

8. Supplied against International Competitive bidding; power projects

9. Supplied for setting up Solar Power Generation projects

And now another item is added to the above list:

Ethanol produced from molasses generated from cane crushed in the sugar season 2015-16 i.e. 1st October, 2015 onwards, for supply to the public sector oil marketing companies, namely, Indian Oil Corporation Ltd., Hindustan Petroleum Corporation Ltd. or Bharat Petroleum Corporation Ltd., for the purposes of blending with petrol, in terms of the provisions of S.No.40A of the Table in notification No.12/2012-Central Excise, dated the 17th March, 2012, number G.S.R. 163(E), dated that 17th March, 2012 .

So that exempted ethanol doesn't create any CENVAT problems.

Also see Duty on Ethanol – a discriminatory approach.

Notification No. 21/2015-Central Excise (N.T.), Dated: October 07, 2015

Until Tomorrow with more DDT

Have a nice day.

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