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GST - some retired officers to lose 'authorised representative' status

MARCH 11, 2017

By a Netizen

THE development on the GST front has managed to ruffle the feathers of the dedicated and strong CBEC workforce.

Take a look at these news items reported by Taxindiaonline.com -

GST Rapprochement - Is everything lost for CBEC? 

Division of GST Assessee-base - CBEC officers rightly in pain - FM needs to apply balm! 

IGST continues to be 'Apple of Discord' 

GST Council needs to address growing feeling of being wronged! 

IRS Association Writes To PM; Calls For Centralised Registration For Telecom, Banks & Insurance

CBEC officers have no valid reason to fear job loss and reduction in workload, says FM

CBEC officers & other employees associations call for judicial scrutiny of cross-empowerment under IGST 

IRS Association seeks DoP&T intervention for sorting out promotion mess

While I am not intellectually gifted to debate, even on paper, the provisions of GST or for that matter the decisions of the GST Council, I happened to come across a new-found fear lurking amongst the "retired” officers of the department who are now doing a noble profession of 'consulting' in their second innings.

These not-so-big-time 'consultants' apparently do not have a voice in the scheme of things and they requested that I bring the ailing issue to the fore by penning this piece for a redressal by the powers to be.

It seems that the retired officers of the department, particularly the promoted Inspectors, have been hit by a bolt from the blue, even before GST is actually implemented.

Those were the days when getting a single promotion, even after getting appointed as a Direct recruit Inspector, in an entire career of more than three decades was what an officer in the Central Excise department considered as godsend.

Thankfully, that trend seems to have somewhat been 'arrested' with Inspectors getting a promotion as a Superintendent (the coveted gazette rank!) after nearly two decades of service and luckier amongst them getting a second promotion as an Assistant Commissioner, only to last either a day or a couple of days or months (in supposedly inconsequential postings)!

I recollect many of my colleagues in the department, who after retirement, either as DOS, AO, Inspector, Superintendent taking up Consulting jobs to supplement their pension or for that matter to enrich their bank balances.

Taking a voluntary retirement was a novelty those days and not many opted for the same, except of course, the ones who (felt) were gifted, exceptional and had profound knowledge of the subject matter. Almost all of them chose consulting as their profession and many have made a name for themselves in this field. A reasonable number of these officers also had the coveted law degree and registered themselves as Advocates.

These officers, who did not have any law degree, began their Consulting career and also appeared as "Authorized representative” up to the level of the Tribunal [CEGAT/CESTAT] thanks to the provisions of the Central Excise Act, 1944 and the Customs Act, 1962, relevant of which are jotted below -

Central Excise Act, 1944:

Section 35Q. Appearance by authorised representative.- 

(1) Any person who is entitled or required to appear before a Central Excise Officer or the Appellate Tribunal in connection with any proceedings under this Act, otherwise than when required under this Act to appear personally for examination on oath or affirmation, may, subject to the other provisions of this section, appear by an authorised representative.

(2) For the purposes of this section, "authorised representative" means a person authorised by the person referred to in sub-section (1) to appear on his behalf, being-

(c) any person who has acquired such qualifications as the Central Government may prescribe for this purpose.

Central Excise Rules, 1944:

232B. Qualifications for authorized representatives.-

For the purposes of clause (c) of sub-section (2) of section 35Q, an authorized representative shall include a person who has acquired any of the following qualifications namely:-

(e) a person formerly employed in the Department of Customs and Central Excise or Narcotics and has retired or resigned from such employment after having rendered service in any capacity in one or more of the said departments for not less than ten years in the aggregate.

Customs Act, 1962:

SECTION 146A. Appearance by authorised representative. -  (1) Any person who is entitled or required to appear before an officer of customs or the Appellate Tribunal in connection with any proceedings under this Act, otherwise than when required under section 108 to attend personally for examination on oath or affirmation, may, subject to the other provisions of this section, appear by an authorised representative.

(2) For the purposes of this section, "authorised representative" means a person authorised by the person referred to in sub-section (1) to appear on his behalf, being -

(d) any person who has acquired such qualifications as the Central Government may specify by rules made in this behalf.

Customs (Appeals) Rules, 1982:

9. Qualifications for authorised representatives.-

For the purposes of section 146A, an authorised representative shall include a person who has acquired any of the following qualifications, being the qualifications specified under clause (d) of sub-section (2) of the said section 146A, namely:-

(e) a person formerly employed in the Departments of Customs or Central Excise or Narcotics and has retired or resigned from such employment after having rendered service in any capacity in one or more of the said Departments for not less than ten years in the aggregate.

Now, coming to the GST Model law, this is what the provision reads -

105. Appearance by authorised representative

(1) Any person who is entitled or required to appear before a GST Officer appointed under this Act, or the First Appellate Authority or the Appellate Tribunal in connection with any proceedings under the Act, may, otherwise than when required under this Act to appear personally for examination on oath or affirmation, subject to the other provisions of this section, appear by an authorized representative.

(2) For the purposes of this section, "authorised representative” means a person authorised by the person referred to in sub-section (1) to appear on his behalf, being -

(d) a retired officer of the Commercial Tax Department of any State Government or of the Central Board of Excise and Customs, Department of Revenue, Government of India, who, during his service under the Government, had worked in a post not lower in rank than that of a Group-B gazetted officer for a period of not less than two years.

Spot the difference.

++ Whereas earlier, a person who is formerly employed in the Departments of Customs or Central Excise or Narcotics and had retired/resigned after having rendered service in "any capacity” for not less than ten years in the aggregate could appear as an "authorized representative” before any Central Excise officer /Customs officer or the Appellate Tribunal, under the GST law the doors are almost closed for him.

++ The reason being that as per the definition of "authorized representative” given in section 105 of the GST Model law, the "retired officer” should have, during his service, under the Government, worked in a post not lower in rank than that of a Group B gazetted officer for a period of not less than two years.

++ So, the DOS/Inspector who is practicing as a 'consultant' now would no longer be considered as an "authorized representative” under the GST law.

++ As for the Superintendent who retired on superannuation, in any case, as mentioned earlier in this article, promotions were scarce those days and it were only the fortunate few who could serve as Superintendent for two years or more. So, the less fortunate ones too would also be out of reckoning under the GST law.

++ All the above needs to be also borne in mind by the officers who are already retired/opted for VRS and those who are contemplating taking a VRS and entering the "practice” of GST.

++ Had you obtained that Law degree while in service, you would have been blessed!

Also see the following interesting change vis-à-vis the provisions in the CEA, 1944 and Customs Act, 1962 -

GST Model Law Section 105

(3) Notwithstanding anything contained in this section, no person who was serving in the indirect tax departments of the Government of India or of any State Government, and has retired or resigned from such service after having served for not less than two years as a Gazetted officer in that department shall be entitled to appear as an authorised representative in any proceedings before a GST Officer for a period of one year from the date of his retirement or resignation, as the case may be.

Central Excise Act, 1944 Customs Act, 1962 Section 35Q Section 146A

(3) Notwithstanding anything contained in this section,no person who was a member of the Indian Customs and Central Excise Service - Group A and has retired or resigned from such Service after having served for not less than three years in any capacity in that Service, shall be entitled to appear as an authorised representative in any proceedings before a Central Excise Officer for a period of two years from the date of his retirement or resignation, as the case may be.

It seems that the above provisions of section 105 of the GST Model Law have not yet managed to attract any attention but hopefully this article does.

The GST law is certainly proving to be painful for the officers concerned.

(The author is a retired Superintendent and is reluctant to try his hand at Consulting. He chooses to remain anonymous and hopes TIOL publishes this article, an act which would be admired by all retirees and serving officers, alike.)

(DISCLAIMER : The views expressed are strictly of the author and Taxindiaonline.com doesn't necessarily subscribe to the same. Taxindiaonline.com Pvt. Ltd. is not responsible or liable for any loss or damage caused to anyone due to any interpretation, error, omission in the articles being hosted on the site)

 RECENT DISCUSSION(S) POST YOUR COMMENTS
   
 
Sub: retired officer as consultants

GST has not changed anything to affect the right of the retired officers to appear before the GST adjudicating authorities. The only change that appears to have been made is that minmum qualification of service as Group B officer in any of the specified departments is prescribed. There are almost no offcers working as consultants who do not satify this condition.

Posted by mangcus mangcus
 
Sub: qualification 0f Authorised Representative

i would like to submit on the article on the referred subject.
writer has ignored the obvious reason about the quality 0f knowledge below the Group B officers in department.Learned retired supdt probably has not come across with officers under him who lack even basics of adjudication proceedings and related laws.They make mockery of themselves before different forums and malign image of retd officers .
thanks

Posted by RADHEY SHARMA