Taxindiaonline.com
Taxindiaonline.com Taxindiaonline.com TIOL Tube Taxindiainternational.com
 
LOGIN
Forgot Password |  Register  
Monday , August 29, 2016 | Updated : Aug 29, 20:32 IST
Income Tax    Customs    Excise    Service Tax    FEMA    DGFT    SEZ    Misc    Pitara    Budget   
About Us Contact Us Advertise
Taxindiaonline.com Taxindiaonline.com Taxindiainternational.com
 
 
NEWS FLASH
 
AP Govt & DRI get more time for export of seized Red Sanders; Quota for AP revised (See Notification No 24 in 'What's New') India-Mauritius DTAA to curb revenue loss, prevent double non-taxation (See 'Mixed Buzz') Enhanced regional cooperation needed to speed up free trade within SAARC: Gowda (See 'Mixed Buzz') IGI Airport Customs seizes heroin worth Rs. 40 lakhs from Afghan national GeM: Time bound payment process to ease supplier worries (See 'Mixed Buzz') Trade dialogue between states & US investors to boost bilateral trade: FM (See 'Mixed Buzz') Rajesh Kumar Bhoot, IRS, 1994 Batch, is appointed as New JS (TPL-II) (See 'Service News' in Pitara) India, USA Strategic and Commercial Dialogue to take place tomorrow in Delhi (See 'Mixed Buzz') Applications invited for post of Member (Revenue), ARA (Income Tax) (See 'Deputation' in Pitara) Handling of Cargo in Customs Areas-Less Bondage (See 'DDT' Column) Date of filing of return for assessees in J&K extended till 30th Sept 2016 CENVAT Credit is allowed on outdoor catering post 01.04.2011 - Not hit by exclusion as Service cannot be treated as for primarily for personal use of employees: CESTAT (See 'Breaking News') GST may make 'Make in India' a dream in few sectors (See 'Guest' Column) Income tax - Whether filing of petition before HC against reopening notice, can be faulted on ground that despite receipt of reasons for notice, assessee had rushed to HC prematurely - NO: HC (See 'Breaking News') Customs - Guidelines on safety and security of premises where imported or export goods are loaded, unloaded, handled or stored (See 'DDT') Cus - Application for renewal of licence was pending with Department - there is no illegality in order of AC suspending warehousing licence of appellant exercising power given u/s 58(3) - appeal dismissed: CESTAT (See 'Breaking News') Fake Raid - Central Excise Superintendent Sentenced to Five Years Imprisonment (See 'DDT') I-T- Whether expenditure incurred on product development, is revenue expenditure - YES: ITAT (See '2016-TIOL-1558') No Extension for CESTAT Member + Letters from MPs - Babus to Reply Promptly (See 'DDT') Switzerland & UK top tally of most innovative economies; Singapore (7th) only economy from Asia to figure in top 10 Chennai Customs seizes 4500 green baby turtles from Malaysian pax Thiruvananthapuram-Mangalore Express several coaches derail; None injured GST is an example how big things can be done if all political parties work together International arbitration - Most BRICS members yet to have positive experience with investment arbitration; FM calls for not only free trade but also fair trade Electropreneur Park set up at Delhi Univ to incubate 50 early start-ups & to create at least 5 global companies over 5 years India speaking to Brazil to produce pulses for India: Ram Vilas Paswan Law Minister wants better representation in international arbitration Board issues guidelines prescribing the distance to be maintained between hazardous cargo/explosives and general cargo or administrative building in a Customs area (See 'Notifn 40' in 'What's New') Income tax - Whether licencee can claim entitlement to business loss on account of forfieture of licence fee, where the loss, if any, on account of forfeiture was sustained not by said licencee but by tranferee - NO: SC (See 'Breaking News') CX - NE exemption – Notfn 11/2007 is hit by promissory estoppel; cannot be sustained and accordingly is set aside - petitioner would continue to get benefit in terms of promise re-extended by OM dated 01.04.2007 for remaining period in terms of NEIP: HC Treading the GST Path - II - ISD - Decodifed (See 'ST se GST tak') I-T - Whether if toddy is tapped from coconut trees grown by members of a cooperative society and marketed for profit, such income is entitled to exemption u/s 80P - YES: ITAT (See 'Breaking News')
 
Bookmark and Share
Promotion to Commissioner-level in CBEC - New Year Gift to Appraiser Promotees – Commissioner DPC to be held by December 31– Good News for Direct recruits as well - High Court directs Government to promote those already recommended by DPC held on June 23, 2008

By TIOL News Service

NEW DELHI, NOV 25, 2008 : THIS is the dispute which has caused undue delay in some Additional Commissioners in Customs and Central Excise getting promoted as Commissioners.

The Union of India had prepared a seniority list in 2004 of all the Assistant Commissioners, that is, Assistant Commissioners who came from the stream of direct recruits and those who came by way of promotion from the grade of Appraiser and Superintendent. This seniority list appears to have been the subject matter of a challenge and was struck down. The Union of India also prepared another integrated seniority list published on 28th April, 2005. The integrated 2005 seniority list was operated for making promotions to the post of Joint Commissioner. It appears that today this 2005 seniority list is the only existing or operative seniority list.

In respect of one case taken up by the Madras High Court, judgment was delivered on 21st April, 2006 wherein certain principles were laid down with respect to the fixation of seniority of Appraisers and Superintendents. The decision rendered by the Madras High Court was taken up to the Supreme Court in Chennai Customs Appraising Officers Association v. Union of India and Others - 2008-TIOL-109-SC-SERVICE. The Supreme Court approved the principles laid down by the Madras High Court.

The sum and substance of the decision of the Supreme Court is two fold: firstly, the seniority of Appraisers and Superintendents is required to be redrawn on certain principles; secondly, the seniority of Appraisers and Superintendents is again open till it is redrawn and finalized. The effect of this will, of course, be felt up the ladder.

While litigation on seniority was in full swing in several judicial forums, the Union of India/Central Board of Excise and Customs decided to fill up 48 vacancies in the grade of Commissioner of Customs and Central Excise. From the note put up before the Departmental Promotions Committee it appears that the Union of India decided, on the basis of some calculations made by it, that 36 vacancies are to be filled up from the category of directly recruited Assistant Commissioners while 12 vacancies fall to the category of promotee Assistant Commissioners (promoted from the grade of Appraisers and Superintendents). It also transpires from a reading of the note that since there was no dispute about the seniority of the directly recruited Assistant Commissioners, the DPC was requested to make recommendations to fill up only those 36 vacancies. With regard to the 12 vacancies which fell to the category of promotee Assistant Commissioners, the matter was kept in abeyance pending finalization of the inter se seniority of Appraisers and Superintendents. In other words, the integrated seniority list of 2005 was given a partial go by. From the note it also appears that one of the reasons for holding back the filling up of 12 vacancies is that a case for contempt of Court was pending before the Madras High Court (since decided).

The DPC met soon thereafter and made its recommendations on 23rd June, 2008 concerning promotions of directly recruited Assistant Commissioners to the grade of Commissioner of Customs and Central Excise. None of the promotee Assistant Commissioners was considered for promotion.

Feeling upset with this situation, the promotee Assistant Commissioners (actually now Additional Commissioners) preferred O.A. No. 1366/2008 before the Principal Bench of the Tribunal. The prayer made by the promotee Assistant Commissioners/Additional Commissioners was for a declaration to the Union of India to follow the draft seniority list of 2005 in its entirety, and without excluding them from consideration. It was also prayed that the proceedings of the DPC held on 23rd June, 2008 be set aside to the extent that the DPC considered the case of persons who were junior to the promotee Assistant Commissioners/Additional Commissioners. The third important prayer was for a direction to the Union of India to hold a review DPC and consider the case of the promotee Assistant Commissioners/Additional Commissioners for promotion to the grade of Commissioner of Customs and Central Excise before any of their juniors from the draft 2005 seniority list are considered.

By the impugned order, the Tribunal granted a blanket stay of the recommendations of the DPC with the result that even those directly recruited Assistant Commissioners (now Additional Commissioners) who could be promoted as Commissioner of Customs and Central Excise were injuncted from holding that post. The impugned order passed by the Tribunal on 7th August, 2008 was subsequently modified by another order on 17th October, 2008 whereby the Union of India was permitted to promote those directly recruited Assistant Commissioners to the grade of Commissioner, who were senior to the promotee Assistant Commissioners before the Tribunal.

While there is a partial modification of the impugned order passed by the Tribunal on 7th August, 2008 the substantive grievance raised by the promotee Assistant Commissioners before the Tribunal continues to remain, which is that they were not considered for promotion to the grade of Commissioner of Customs and Central Excise.

The High Court observed,

the public interest requires that all the posts of Commissioner of Customs and Central Excise should be filled up by the Union of India. There is no doubt that that grade consists of senior posts in the Government of India and it does not serve anybody’s purpose whatsoever if 48 of these posts lie vacant all over the country (as a result of the impugned order). Similarly, it does not serve anybody’s purpose if only 8 out of these 48 posts are filled up (as a result of order dated 17th October, 2008). The more appropriate course of action would be endeavouring to fill up all the 48 posts so that administrative efficiency does not suffer.

It appears inequitable that until the seniority list is finalized on the principles accepted by the Supreme Court (which may take any amount of time), a vacuum should exist in respect of the posts of Commissioner of Customs and Central Excise from the promotee Assistant Commissioner category. To avoid such a vacuum, which really does not serve any public purpose, it would be appropriate if the 2005 seniority list is actually given full effect to on an ad-hoc basis, subject to implementation of the orders of the Supreme Court.

Rule 24 of the Indian Customs and Central Excise Service Group ‘A’ Rules, 1987 makes it quite clear that a senior person cannot be ignored for consideration for promotion if his junior is considered. In the present case, there is admittedly no dispute that some persons junior to the promotee Assistant Commissioners fall in the category of directly recruited Assistant Commissioners who have not only been considered for promotion but have actually been selected. This is contrary to the plain language of Rule 24 of the aforesaid Rules.

So the High Court held:

(i) The Union of India should convene a DPC within a period of one month from today and in any case on or before 31st December, 2008 and consider the promotee Appraisers and Superintendents (who are now Additional Commissioners) for promotion to the grade of Commissioner of Customs and Central Excise on the basis of the 2005 seniority list adverted to above.

(ii) The Union of India should go ahead and promote those already recommended for promotion to the grade of Commissioner of Customs and Central Excise by the DPC held on 23rd June, 2008 but the promotions so made will be purely ad hoc in view of the Office Memorandum dated 30th March, 1988 which deals with revision of the seniority list and provides that ad hoc arrangements should be made instead of delaying regular promotions. All promotions whether of directly recruited Assistant Commissioners or promotee Assistant Commissioners/Additional Commissioners will be on an ad hoc basis and subject to final orders passed by the Tribunal in O.A.No.1366/2008.

The High Court requested

(i) the Chairman of the Central Administrative Tribunal to look into the matter and transfer cases similar to the present one pending in any other Bench of the Tribunal to one central place so that there is no conflict of decisions. This is only a request and not a direction.

(ii) the Bench hearing O.A.No.1366/2008 to expedite the disposal of the Original Application pending before it. We have no doubt that all the parties involved in this litigation will fully co-operate with the Tribunal for an early resolution of the dispute.

(See 2008-TIOL-577-HC-DEL-SERVICE in 'Service case laws' in Pitara + 2008-TIOL-577-HC-DEL-SERVICE in 'Legal Corner')


POST YOUR COMMENTS
   
 
 
 
Download on the App Store
Get it on Google play
TIOL SEARCH
 
Visit TIOLCorplaws.com
TIOL Subscriptions
 All-In-One Package
 Indirect Tax Package
 Income Tax Package
<< More Packages>>
 
   
             
Income Tax Customs Excise Service Tax FEMA DGFT SEZ Misc Pitara Budget
  • Notifications
  • Circulars
  • Instructions
  • SC Cases
  • HC Cases
  • ITAT Cases
  • Advance Ruling
  • Settlement
  • Other Cases
  • Directorate of Income Tax (Systems)
  • Reports
  • Customs Rules
  • Tariff Notfn
  • CVD
  • Non Tariff Notfn
  • Circulars
  • Anti-dumping Notfn
  • Safeguard Duty Notfn
  • SC Cases
  • HC Cases
  • Cestat Cases
  • Advance Ruling
  • Settlement
  • Drawback Cases
  • MISC Circulars
  • CCRs - 2004
  • Central Excise Rules
  • Tariff Notfn
  • Non Tariff Notfn
  • Circulars
  • SC Cases
  • HC Cases
  • Cestat Cases
  • Advance Ruling
  • Cesses Notfications
  • Excise Amendment
  • MISC Circulars
  • 37B Order
  • Settlement
  • Commr.(A) Order
  • Tribunal
  • GST Kitty
  • Notifications
  • Service Tax Rules
  • 37B Order
  • Circulars
  • SC Cases
  • HC Cases
  • Cestat Cases
  • Advance Ruling
  • FAQ
  • Finance Act, 1994
  • Commr. (A) Orders
  • Removal of Difficulty
  • VCES
  • Accounting Head
  • Miscellaneous
  • DIPP Notification
  • FDI Approved
  • Exchange Manual
  • Fema Notifications
  • SC Cases
  • HC Cases
  • RBI Notifications
  • RBI Circulars
  • Act
  • Rules
  • Regulations
  • Master Circulars
  • PMLA Notifications
  • Depository Scheme
  • Press Note
  • Notifications
  • Circulars
  • Public Notices
  • Trade Notice
  • FTDR Amendment 2010
  • Notifications
  • Instructions
  • Act 2005
  • Rules 2006
  • DGEP
  • State Acts
  • State Policy
  • MISC
  • SC Cases
  • HC Cases
  • VAT Cases
  • Miscellaneous
  • Service News
  • Promotion
  • Transfer
  • Deputation Posts
  • Cadre Review
  • Transfer Policy
  • Training Circulars
  • Recruitment Rules
  • Pay Commission
  • Service Cases
  • The Insider
  • MISC
  • Budget Speeches
  • Union Budgets
  • Economic Surveys
  • TRU - D. O. Letter
  • Finance Acts
  • Finance Bill
  • Budget Circular
  • A Taxindiaonline Website. Copyright © 2016 Taxindiaonline.com Pvt.Ltd. All rights reserved. | Powered by 4th Dimension