TIOL-DDT 101 · the untouched capture
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<html> <head> <title>Untitled Document</title> <meta http-equiv="Content-Type" content="text/html; charset=iso-8859-1"> </head> <body bgcolor="#FFFFFF"> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b><font color="#0000FF" size="3">TIOL-DDT 101</font><br> 26 04 2005<br> Tuesday</b></font></p> <p align="center"><font color="#006633" size="2" face="Verdana, Arial, Helvetica, sans-serif"> <b>Clogging the courts – A favourite revenue pastime</b></font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>The</b> government usually fights a case not because there is a case but because there is an opportunity to fight and no individual cost. There should be some law that for every case the government loses in any appellate stage, they should pay a compensation of one lakh rupees to the other party. Any party fighting the government in the appellate forums would actually incur more in terms of hard cash, precious manhours lost and sheer mental agony. <br> <br> Today we bring you a case where an appeal was filed after a delay of 667 days on an issue that had reached finality. An order of Commissioner (Appeals) in favour of the party was accepted by the Jurisdictional Commissioner on 22-10-2002. The issue was cum duty price, already decided by the Supreme Court in the Maruti Udyog case. On 26-9-2003, Board vide Circular No. 749 had advised the field that the Maruti decision is not applicable to old cases and review petitions have been filed in the Supreme Court. So the Board wanted the field to pursue the old cases. It is in pursuance of this Board direction that the Bangalore Commissioner decided to file an appeal in the Tribunal after two years of the orders of the Commissioner (Appeals). Incidentally while filing this appeal along with the application for condonation of delay the Commissioner was aware that the same Bangalore Bench of the Tribunal had dismissed departmental appeals on the same issue. But what can the poor Commissioner do when the Board and the Chief Commissioner directed him to file an appeal albeit after two years. Incidentally the Board had withdrawn Circular No. 749/03 by Circular No. 803/2004 dated 27-12-2004 as the government’s review petition was dismissed by the Supreme Court. However no effort has been made to withdraw this totally unwanted appeal and the application for condonation of delay. The Tribunal had to pass a lengthy order going through several case laws to finally hold that there is no sufficient cause shown for condonation of enormous delay in the matter. The latches and negligence are patent on record and so delay not condoned and as a result appeal also rejected. <br> <br> <b>See </b></font><b><font size="1" face="Verdana, Arial, Helvetica, sans-serif"><a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=52&filename=legal/cestat/2005/2005-TIOL-329-CESTAT-BANG.htm">2005-TIOL-329-CESTAT-BANG</a></font><font size="2" face="Verdana, Arial, Helvetica, sans-serif"> for full text of the case.</font></b><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><br> <br> <font color="#006633"><b>Can Chief Commissioner direct Commissioner to file appeal against orders of Commissioner (Appeals)?</b></font><br> <br> Sometimes some goods things do come out of totally useless activities as in the delayed appeal case explained above. In this case while agreeing with the Member (Judicial) the Member (Technical) gave a separate order clarifying a vital point of law. The Tribunal held that if a Commissioner did not like the orders of the Commissioner (Appeals) he has to file an appeal with the Tribunal within three months from the date of receipt of the order. Once a Commissioner accepts the order of the Commissioner (Appeals) it is final and the Commissioner becomes functus officio. There is no provision under the law to reverse the decision of the Commissioner. <b>Neither the Board nor the Chief Commissioner has any power under the law to direct the Jurisdictional Commissioner to file an appeal after he has accepted the Order-in-Appeal.</b> Acceptance of the order in appeal is not an empty formality and is normally done after thorough scrutiny. Coming to the facts of the present case, the Member (Technical) observed that the Order-in-Appeal had relied on a judgement of the Supreme Court and the law declared by the Supreme Court is binding on all courts. So the Jurisdictional Commissioner was duty bound to accept the Order-in-Appeal which he duly did. The Commissioner filed the present appeal not on his own will but because of directions from the Chief Commissioner and the Board. But as the Commissioner had performed his statutory duty he has become functus officio and is disabled from filing the appeal. More so when the Chief Commissioner has no statutory power to direct the Commissioner to file an appeal against the Order-in-Appeal. <br> <br> <font color="#006633"><b>Who is responsible for the farce? </b></font><br> <br> <b>Functus officio – An authority who has performed the act authorised so that the authority is exhausted. This is the legal doctrine which prohibits authorities from revising their own orders. <br> <br> DDT’s question</b><br> <br> An Assistant Commissioner allows a refund claim. Later it is found that the refund was erroneous and he issues a Show Cause Notice to recover it. Is the Assistant Commissioner functus officio?</font></p> <p align="justify"><font color="#006633" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>RBI on insurance liaison office</b></font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">In a major reformist move RBI has granted general permission to foreign insurance companies to set up their liaison offices in India provided they have already obtained approval from IRDA. Such a permission also does not mean an exemption from obtaining approvals from any other authority as per the law.</font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=49&filename=notification/rbi/2004/rbi04cir039.htm"><b>See RBI Circular 39 Dated 25.04.2005</b></a></font></p> <p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"> <font color="#FF6666"><b>Until Tomorrow with more DDT<br> <br> Have a Nice Day. <br> <br> Mail your comments to</b></font> <b>vijaywrite@taxindiaonline.com </b></font></p> </body> </html>