Appeals filed by Department – Urgent need for constituting panel of Advocates
In we reported about the pathetic state of affairs in handling appeals filed by the Department before the CESTAT and High Courts and how the Department hit upon a brilliant idea of hiring retired senior officials of the Department to represent Revenue's cases before the Tribunals. But at the same time we also highlighted the uncivilized and callous approach of the field formations in hiring these retired officials and the treatment meted out to them.
Hitherto, we also reported the pathetic state of affairs in providing logistic support to the departmental representatives, who fight pitched battles with brilliant advocates representing the assessees, matching their wits albeit with limited or no resources. While this is one of the main reasons for Revenue losing its cases in the CESTAT, majority of the cases are lost by the Revenue due to very poor drafting of appeal memorandums by the field officers which either lack clarity in statement of facts or contain faulty grounds of appeal.
Apart from this, there are also instances where the appeals are filed with unsigned authorizations from the Committee of Chief Commissioners or Committee of Commissioners. Many a time the accompanying authorizations are signed by subordinate officers who are not even competent to file appeals as per the statute. There were many instances where CESTAT had come down heavily on the Department for its callous approach in filing appeals. Many appeals were even dismissed on these simple but technical issues.
CBEC has to take a fresh approach to solve this malaise afflicting departmental appeals filed before the Commissioner (Appeals) and Appellate Tribunal. At the outset, CBEC should consider empanelling advocates who are well versed in the indirect tax domain at the Zonal level. This would be in addition to the existing practice of handing over high revenue cases to the Special Counsels who are retired senior department officials.
Every zone should have a panel consisting of minimum ten advocates with a fixed tenure of three years. They should be paid adequate remuneration consisting of fixed and variable component, for the services rendered by them. In fact there are many retired departmental officers who are practising as advocates.
CBEC should not forget the famous quote ‘If you pay peanuts you get monkeys' while deciding the remuneration to be paid to these advocates. Their status in the panel should be reviewed and extension granted for a further period of three years based on their performance which has to be evaluated very objectively. Performance evaluation of an advocate should also include peer reviews of other panel members. In case if the performance of one or more advocates is below par, other eligible advocates should be empanelled in their place.
As soon as the Committee of Commissioners or the Committee of Chief Commissioners decides that a case is fit for filing an appeal (this is a statutory function of the Committees and the advocates cannot have a say whether an appeal can be filed at all), the Commissioner should forward the case file to one of the advocates on the panel without discriminating amongst the advocates on the panel ensuring adequate work for all the advocates on the panel.
The advocate who is entrusted with the case file should be allowed to draft the appeal memorandum in consultation with the Commissioner, incorporate additional inputs if any from the Commissioner and file the appeal before the Commissioner (Appeals) or the Appellate Tribunal as the case may be. The advocates should argue the cases before the Appellate Authorities to the best of their abilities. In the Tribunals they should be ably assisted by the Departmental Representatives or the Special Counsels, while at the Commissioner (Appeals) level they should be assisted by the Range Officer in charge of the assessees.