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Revision by Same Rank Officer -Board is in 'process of taking' appropriate remedial measures

TIOL-DDT 2974
21 11 2016
Monday

THE appeals against order of the Commissioner and Commissioner (Appeals) are, as is well known, to be filed with the Customs, Excise and Service Tax Appellate Tribunal (CESTAT).

There is a little known appellate channel in indirect tax matters - the Government as Revision Authority.

Under Section 35EE of the Central Excise Act, 1944, in respect of orders passed by Commissioner(A) relating to transit loss, rebate or export without payment of duty, the appeal lies to the Central Government i.e the Revision Authority. Similarly, under Sec 129DD of the Customs Act, 1962, cases involving baggage, drawback and shortages, the appeal lies to the Central Government.

In the case of M/s. NVR Forgings - 2016-TIOL-1066 -HC-P&H-CX, the Punjab and Haryana High Court set aside two orders passed by the Revision Authority on the ground that the Commissioner (Appeals) and the Revision Authority were of the same rank.

The High Court observed,

1. the impugned order was passed by the Joint Secretary to Government of India who was also Commissioner of Central Excise and Customs.

2. Thus, the order in appeal as well as revisionary order had been passed by the officers of the same rank which is not permissible as per law.

3. The impugned orders are set aside.

4. However, liberty is granted to the State to proceed afresh in accordance with law but without prejudice to the rights of the parties.

While covering the above decision in DDT 2861, I had suggested -

What can the Government do?

1. The easiest thing perhaps is to appeal to the Supreme Court, which option will keep all the pending cases with the Revision Authority in suspended animation for the next decade or so.

2. They can appoint a Chief Commissioner as the Revision Authority, so that the Revision Authority is higher in rank than the Commissioner (Appeals). But this is not easy -as such they do not have enough Chief Commissioners and which Chief Commissioner will like to work as a Revision Authority?

3. They can do away with the appeals to the Revision Authority? Why should the Government retain certain appellate powers when we have an effective Tribunal? Is it to retain a post or to ensure Revenue favour orders in these matters?

The High Court order came two months ago; the Government has not acted so far - hope they will soon.

The Department took the 'easy' way out -they appealed to the Supreme Court.

However, after condoning the delay, the SLP was dismissed by the Supreme Court on 17.10.2016.

Not ready to give up, the department again referred the matter to the Law Ministry to consider the feasibility of filing a Review Petition. However, the Additional Solicitor General of India opined against this view.

In the meantime, on a similar issue, by an order dated 07.11.2016, the Supreme Court dismissed the Department filed SLP (C) CC No. 2005/2016 in case of M/s. Modi Springs Pvt. Ltd.

The Board, therefore, informs the field formations, the following -

"6. In view of above position, Department is in process of taking appropriate remedial measures, for disposal of the Revision Applications, arising out of the orders passed by the Commissioner (Appeals)."

Taking appropriate remedial measures, we pray, should not mean that the provisions are going to see a minor retrospective amendment in the forthcoming Union Budget.

But, Heads I win, Tails you lose has been the philosophy since times immemorial!

F.No.276/125/2016-CX.8A dated November 16, 2016

GST Jurisdiction -Stalemate continues

THE informal meeting called by the Finance Minister yesterday to discuss the issue of GST jurisdiction failed to resolve the differences. The discussions will continue on 25th November when the GST Council meets. The proposed GST needs to be rolled out before 16th September, 2017, which is fast approaching.

For more, please see DDT 2932.

Clearance of Imported Metal Scrap -Pre-shipment inspection certificate is a must

IN Circular 48/2016 - Customs, the Board revised the guidelines for clearance of un-shredded, compressed or loose metallic scrap.

In Para 3(i), however, while prescribing the documentary requirement in respect of the clearance of the shredded metallic scrap (both ferrous and non-ferrous), it is mentioned that the import shall be permitted 'without any pre-shipment certificate'.

The Board says that this was "inadvertent" since Policy conditions for import of shredded metallic scrap are prescribed in Para 2.54 (b) of HBP (2015-2020) which clearly mention that the importer shall furnish to the Customs, a pre-shipment inspection certificate from the designated inspection & Certification agencies.

Para 3(i) of the Circular No. 48/2016 -Customs, therefore,stands modified to the said extent.

Circular 53/2016-Customs dated November 18, 2016.

IDS declarations without PAN

IT has come to the notice of Member (L&C), CBDT that some declarations under IDS, 2016 received manually without PAN are still pending for issuance of Form -2 due to non-availability of PAN.

Therefore, in a communication addressed to the field formations, the Member says -

+ I also understand that Directorate of Systems have sent e-mail and SMS to the concerned officers to update PAN in Form-1 or to communicate the PAN application number to the Directorate for expediting PAN allotment in such cases. Further, attempts have also been made by the e-filing team to telephonically contact the officers to sensitise about the urgency of this matter.

+ Despite such efforts, I understand that several such cases are still pending and the relevant information has not been sent to the Directorate of Systems. In view of the approaching deadline for payment of first installment under the IDS, 2016, please take all necessary steps, including contacting the declarant to obtain the PAN or ensuring that the declarant removes all deficiencies in the PAN application, so that allotment of PAN can be expedited. It is expected that issuance of Form-2 in all such cases, in accordance with instruction No.10 of 2016 dated 28.09.2016 is done by 25.11.2016.

Hope all concerned meet this deadline.

D.O. F.No.370142/8/2016-TPL (Part) dated November 17, 2016.

Order passed without authorization is non est

AN o-in-o was passed by the Commissioner of Customs (Adjudication), Mumbai on 26/10/2004.

Against this order, the Revenue is before the CESTAT.

The Bench noted -

++ Initially, by an order No. 437/1/97-Cus-IV dated 03/07/2003, the Commissioner (Adjudication) was appointed to decide the case for the show-cause notice issued to the respondents.

++ Subsequently, by another order dated 23/09/2004 for the show-cause notice issued by the respondent, nomination of adjudicating authority is changed to Commissioner of Customs, Customs House, Mumbai.

Observing that the Commissioner of Customs (Adjudication) who passed the impugned order was not authorized to do so, the same was held to be non est and set aside.

A double whammy!

Please see 2016-TIOL-3018-CESTAT-MUM

Reporting High Court proceedings -norms for accreditation

IN TIOL-DDT 2900, dated 1^st August 2016,it was reported -

No Ban on Journalists from attending and reporting Court Proceedings: Kerala High Court

THE Kerala High Court has clarified that there is no ban imposed on the Journalists from attending and reporting Court Proceedings. The Committee to formulate Code for the Press and Electronic Media in relation to Reporting of Court Proceedings will look into the issue of framing guidelines to provide prompt and easy access for the Journalists to judgments and orders which are pronounced and issued.

The High Court however added that taking into account the requirements to insulate the Chamber and Office of each Judge and attached Staff, including Private Secretaries and Personal Assistants, the individual Judges will be at liberty to decline access to any person to their Chambers and the Office of the Private Secretaries and Personal Assistants.

Norms for accreditation of legal correspondents in the High Court of Kerala have been approved at the meeting of the Full Court held on 10.11.2016.

Inter alia, they are -

+ He must have a Law degree recognized by the Bar Council of India constituted under the Advocates Act.

+ Any working journalist/ correspondent who desires to regularly report the High Court proceedings may be eligible to be considered for regular accreditation by the High Court of Kerala. An applicant can also procure for temporary accreditation.

+ The conditions laid down would be required to be fulfilled by the working journalist/correspondent/applicant.

+ Temporary accreditation granted shall be valid for a maximum period of three years. On being granted regular/temporary accreditation, the legal correspondent so accredited will be issued an identity Card.

+ The accreditation, whether regular or temporary, shall be liable to be withdrawn by the Chief Justice, at any time, without assigning any reason and such decision shall be final and binding. Not more than two correspondents of a newspaper/news channel shall be granted accreditation at a time.

+ The Registrar General may in his discretion also grant temporary reporting facility to a working journalist for a day/short duration or for a specific case on fulfilling the laid down criteria. The working journalist who has been granted temporary reporting facility shall comply with the conditions which are to be observed by accredited journalists.

+ An Accredited Legal Correspondent, regular or temporary shall while in Court precincts be in formal dress in a manner befitting the decorum of the court and shall display prominently his identity card.

+ An Accredited Legal Correspondent, regular or temporary, shall, at all time, maintain decorum in the court and refrain from doing anything that may disturb the proceedings of the court and shall always abide by the instructions/orders of the Presiding Judge, for the smooth conduct of the court proceedings and shall also confine to area/seats provided for them.

+ An Accredited Legal Correspondent, regular or temporary, shall make only a true and correct reporting of court proceedings/ orders/judgments, without any distortion and embellishment.