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GST - Appellate Authority has not noticed the provisions of Section 12 of the Limitation Act, 1963 which mandates that the day on which the judgment complained of was pronounced, is also to be excluded: HCGST - If the Proper Officer was of the view that the reply filed was insufficient, he could have sought more clarification - Without providing any such opportunity, impugned order could not have been passed - Matter remanded: HCGST - Notice requiring petitioner to furnish additional information/clarification does not mention that petitioner had to appear for personal hearing - Since no opportunity of personal hearing was given, order is unsustainable: HCGST - For the purposes of DNB and FNB courses, petitioner clearly falls within the scope of an educational institution imparting education to students enrolled with it as a part of a curriculum - Services exempted: HCGST - Candidates appearing for the screening tests are not students of the petitioner - Petitioner's claim of exemption on such examination fees is unmerited: HCGST - NEET examinations are in the nature of an entrance examination - Petitioner would be entitled to the benefit of an exemption by virtue of Serial No.66(aa) of the 2017 Notification, which came into effect on 25.01.2018: HCBrisk voting reported from all 96 LS seats; PM casts vote in AhmedabadIndia calls back half of troops stationed at MaldivesIndia-Australia DTAA: Economic Statecraft through TaxRBI alerts against misuse of banking channels for facilitating illegal forex tradingTime Limit to file Appeal in GST Appellate TribunalEC censures Jagan Reddy & Chandrababu Naidu for MCC violationsI-T-Interest income earned by a co-operative society on its investments held with a cooperative bank would be eligible for claim of deduction under Sec.80P(2)(d) of the Act: ITATFrance tells Xi Jinping EU needs protection from China’s cheap importsI-T- Addition cannot be made merely for reason that assessee got property transferred through registered sale without making payment to vendor: ITATUK military personnel’s data hackedI-T- Addition which is not based on the reasons for reopening is un-sustainable sans notice u/s 148 of the ACT: ITATOxygen valve malfunction delays launch of Boeing’s first crewed spacecraftI-T- Re-assessment need not be resorted to, where no income has escaped assessment or where no evidence is put forth to establish escapement of income: ITATPulitzer prize goes to Reuters & NYTFM administers Oath to Justice Sanjaya Kumar Mishra as first President of GST TribunalDutch, Belgian students join Gaza sit-ins by US Univ studentsI-T- Penalty imposed u/s 271(1)(c) are not sustainable where additions based on which penalty was imposed, are themselves set aside : ITATGhana agrees to activate UPI links in 6 monthsECI calls for ethical use of social media platforms by political partiesCus - Technological innovation and advancements would result in obsolescence of raw materials imported duty free - Destruction of such imports allowed after intimation to Customs authority: CESTATED seizes about 20 kg gold from locker of a cyber scammer in HaryanaMinistry of Tourism participates in Arabian Travel Mart 2024 in DubaiST - No evidence has been adduced to negate the specific findings of adjudicating authority holding that the service tax on all these expenses, by including same in gross transaction value has been discharged by assessee: CESTATICG detains Iranian boat, with six Indians onboard, off Kerala coastCX - As assessee is able to prove that all the items in question have been used in fabrication of structures for installation of capital goods which were ultimately used in manufacture of their final product, CENVAT Credit is allowed to assessee: CESTAT
 
Setback for former CBEC Member; Delhi HC dismisses Writ against CVC imposing major penalty in corruption case

By TIOL News Service

NEW DELHI, DEC 19, 2018: THE issue is - Whether in case of a vigilance complaint for which the CVC has sent a communication to the Ministry, even the Union Finance Minister has no powers to close the file without holding any consultation with the CVC. YES is the verdict.

Facts of the case

The petitioner, an IRS Officer of 1975 Batch, superannuated from the post of Member, CBEC on 31.03.2011. While she was in service, a complaint was made against the petitioner in respect of availment of exemption under Notification bearing No.39/2001-CE, dated 31.07.2001 by one M/s. Sunshine Oleochem Pvt. Ltd., and the Directorate of Vigilance, Central Board of Excise and Customs forwarded the same on 04.03.2011 to the Additional Secretary and CVO (Rev. Hqrs.), Deptt. of Revenue, Ministry of Finance. While the matter was still pending consideration in the Ministry of Finance, on 21.03.2011, the CVC issued an office memorandum addressed to the Ministry of Finance stating that the CVO, Deptt. of Revenue may expedite views/ comments on the complaint against the petitioner for the perusal of the Commission on priority basis, as the petitioner is due for retirement on superannuation on 31.03.2011.

On 25.03.2011, the Ministry of Finance through Revenue Secretary sent a communication to the CVC wherein it was, inter alia stated that "the complaint has been examined in Revenue Headquarters vis-avis explanation submitted by Smt. Vijai Lakshmi Sharma. This Department has observed that the case made out by DG(Vig.), CBEC is baseless and unfounded. Therefore, it has been decided with the approval of Finance Minister to close the complaint against Smt. Vijai Lakshmi Sharma. Smt. Vijai Lakshmi Sharma was retiring on 31.03.2011.

The CVC, however, did not agree with the decision taken with the approval of the Finance Ministry to close the complaint against the petitioner and communicated its advice vide office memorandum dated 30.05.2012. Consequently, the charge-sheet was issued to the petitioner vide memorandum dated 09.08.2012 under Rule 9 of the CCS (Pension) Rules, 1972, since she had already superannuated on 31.03.2011.

Having heard the counsels the HC held that,

Whether in case of a vigilance complaint for which the CVC has sent a communication to the Ministry, even the Union Finance Minister has no powers to close the file without holding any consultanton with the CVC - YES: HC

++ when the CVC issued the communication dated 21.03.2011 to the Ministry of Finance requiring the CVO, Department of Revenue to expedite the views/ comments on the complaint made against the petitioner, the said communication could not have been brushed aside and a final decision taken, including by the Finance Minister, to close the complaint against the petitioner without holding consultation with the CVC. The views of the CVC were bound to be elicited and considered before taking any such decision to close the complaint. Pertinently, the communication dated 25.03.2011 merely states that the complaint against the petitioner "is baseless and unfounded". However, the basis on which the said observation was made is not reflected in the said communication. There is nothing to suggest that the advice of the CVC contained in the OM dated 30.05.2012, or the substance thereof, was considered by the Finance Minister before the Confidential communication dated 25.03.2011 was issued by the Revenue Secretary to the CVC. The communication dated 25.03.2011 could, thus, at the highest be regarded as containing a tentative view of the Competent Authority to close the complaint. Pertinently, the competent authority has chosen to issue the charge sheet to the petitioner under Rule 9 of the CCS Pension Rules after receiving the advice of the CVC, as contained in its OM dated 30.05.2012. It was not the stand taken by the Competent Authority/ Ministry of Finance, that the decision conveyed in the communication dated 25.03.2011 was final, and that it could not be reviewed. This only shows that even the Ministry of Finance did not consider the decision communicated to the CVC in the communication dated 25.03.2011 to be the final decision in the matter;

Whether a 'confidential' letter sent by the Revenue Secretary to the CVC confers any enforceable right on the petitioner - NO: HC

++ while the petitioner has placed on record the "Confidential" communication dated 25.03.2011 issued by the Revenue Secretary, Ministry of Finance to the CVC, he has withheld the detailed report in the matter which formed an enclosure to the said communication. Without the detailed enclosure, the said communication is incomplete. Moreover, the fact that the said communication dated 25.03.2011 was marked as "Confidential" itself shows that it was not intended to be communicated to any other person, much less the petitioner. We find merit in the submission of Mr. Kirtiman Singh that there was no "order" in existence – which was passed to close the complaint against the petitioner. As held by the Supreme Court in Laxminarayan R., a right is created under a Rule of a Statutory Authority only when it is communicated, so as to confer an enforceable right. The petitioner is seeking to enforce a so-called right stated to have been created by the confidential letter dated 25.03.2011 issued by the Ministry of Finance which was not intended to be communicated, and was not communicated to the petitioner;

++ we are of the view that there is no question of the issue being "re-opened" by the competent authority after its closure since, in the first place, there was no closure. Merely because, on consideration of the advice given by the CVC, the competent authority has decided to issue the charge sheet to the petitioner vide memorandum dated 09.08.2012, it does not follow that the competent authority has not taken an independent decision. If the competent authority did not concur with the advice of the CVC, it was open to it to correspond with the CVC and place before its reasons for not agreeing with the advice of the CVC contained in the OM dated 30.05.2012. This is so mandated by Section 17 of the CVC Act. Section 17(3) shows that once the advice of the CVC is received, it is for the Central Government to consider the same and take appropriate action and, in case the Central Government does not agree with such advice of the Commission - for reasons to be recorded in writing, it is obliged to communicate the same to the Commission.

(See 2018-TIOL-2632-HC-DEL-SERVICE)


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