Chief Commissioner is again angry!
REMEMBER BR Tripathi ? He is the Chief Commissioner of Customs, Central Excise and Service Tax, Lucknow , angry young man of the Department. For his earlier outbursts, please see - 14.05.2010 and - 07.01.2011
Now the vociferous Chief Commissioner takes on the Board. He has sent us this letter which he wants us to give wide circulation. Here is the full text of his letter with no editorial interference – not even on spellings.
Offlate it is noticed by the departmental officers, the duty and tax paying fraternity, consultants and by other stake-holders that so many circulars are emanating from the pigeon holes of the North Block. At times addressed to Chief Commissioners and Director Generals but other times to All Commissioners of Customs (A),Commissioners Customs (P), CDRs and to elk of that kind. 4 circulars were received by the under-signed in the ' tapal ' for 27/01/2011-
(i) Circular 3/2011- Cus dated 06/01/2011 issued from F.No 450/115/2009 Cus.IV on the subject of "Import of edible/food products-regarding." Addressed to-"Sir/Madam".
(ii) Circular no 01/2011-Customs dated 04/01/2011 issued from F.No 401/179/2009- Cus III on the subject matter of "Provisional release of export-goods detained for investigation-reg."
(iii) Circular no. 06/2011- Cus dated 18/01/2011 issued from F. no 609/119/2010- DBK on the subject matter of "norms of execution of Bank Guarantee in respect of Advance Authorization/duty free import Authorization ( DFIA )/Export Promotion Capital Goods( EPCG ) Scheme-reg."
(iv) Circular No 7/2011 dated 18/01/2011 issued from F.no 609/119/2010- DBK on the subject matter of "export of handicraft and artware items under Drawback Scheme-reg."
2. On 27/01/2011 itself on Tax India Online.com I read about an article written by Mr.S . Shivkumar , CA under heading- Remanding of Service Tax refund claims-Appellate Commissioners find ingenious way to reject Board's Circulars. On the efficacy of CBEC Circular no 120/01/2010 dated 18/02/2010 issued from F.No 275/34/2006-CX 8(A), Mr Shiv Kumar is lamenting while highlighting the precarious conditions of the exporters about the settlement of their refund claims.
3. If in less than one month, 4 circulars had been issued from the desk of Customs/drawback side one can imagine by the end of the year how many circulars would be out. Those runs in 3 to 4 pages i.e. at time are larger in lines and number of words than a judgment issued, at times, by Hon'ble Supreme Court/High Court Even the orders of the CESTAT are many a times shorter than CBEC Circular. The CBEC circulars either ends with " Kindly acknowledge receipt of this circular" and invariably with "Difficulty faced, if any, in implementation of this circular may be immediately brought to the notice of the Board." One invites or prompts for other.
4. On 27th itself, again I read about the comments made by editorial Board of TI0L published on 19/01/2011 under heading-"Export of handicraft and artware - please obey Board ".
5. The holding of Tariff conference and issuance of tariff advices were foreclosed and issued in the past were recinded in the last decade of the 20th century by the Board. Many a times doubt are expressed about efficacy of CBEC Circulars/instructions which creates more confusion than it clarifies. The Commissioners the Chief Commissioner and the Board under the scheme of Central Excise, Customs and Service tax laws are empowered/authorized to issue circulars, instructions, supplementary instructions, trade notices etc to give effect to the provisions of the acts and the rules i.e. by way of supplementing it or complimenting it. However, generally such instruments are brought in circulation mostly on the strength of the Board's instructions, directions/ orders including statutory orders etc.
6. The Board's instructions should be and ought to have been obeyed and abided by the officers of the field formations as such instruments are issued by the Board, certainty for the length and breadth of the country, being concerned with implementation of such rules/laws and procedures which relates to commodity/services taxation and for which the laws had to be implemented uniformly for the entire territory of India. But many a times the trade, industry, consultants and the tax payers and all others are nurturing the view that Board's Circulars are not being obeyed and is not being implemented by the lower authority, without any risk and that is disobedience no consequences would follow.
7. Be that as it may, I do notice that most of the times what is already known and obvious are being clarified or being ruled by the Board. Secondly the Board's Circulars, either if "modifies to above extent" or it supersedes the earlier circulars. But always the Board advises- "through trade notice or standing order for guidance and strict adherence should be issued by the Commissioners and difficulties if any faced should be brought to the notice of the Board".
8. I do not feel hesitant or reluctant in acknowledging that the Board's Circulars are not being obeyed through out the length and breadth of the country because of-
(i) There is no sense of accountability on account of non-fixing and not fastening on the liability for disobedience-as the " bunderghudki " does not work.
(ii) One is not sure, when such instructions will stand corrected, modified or overruled on that very subject
(iii) At times the clarifications are not to the point, rather are on account of a particular representations in a peculiar fact and circumstances of the case or of a group, and it redress only those isolated issue- which is got turned out twisted and those ratio are applied to other cases, giving cause to another circular.
(iv) The CBEC circulars at times are open to many meanings, constructions and apparently are not that legally sustainable. At times it serves like spoon feeding to new born babies.
9. The communication should be allowed to travel not only from top to bottom, rather at times it should be allowed to travel from bottom to top. Bare minimum circular instructions should be issued. What is not permissible from doors, should not be allowed from windows/ ventilators. Too many clarifications, by way of circulars and instructions, on same subject like provisional release of exports- goods detained for investigation-cannot and should not bound hand and foot, the lower authorities when the senior authorities keep aloofness, showed lack of interest and leadership and displayed an attitude of non-indulgence. Better would be if the Chief Commissioner and Commissioners are held more responsible, accountable and disciplined. At the same time, the CBEC should ensure whether they are getting enriched on legal, technical and financial issue/matters and whether Commissioners and the Chief Commissioners are keeping themselves, abreast and upto date in such fields while keeping their consciousness clear. There would be no harm if there are more intiatives , more interpersonal and visits of Hon'ble member to filed formatives than in approaching the Board's Circular.
This Chief Commissioner is very vocal but perhaps all other Chief Commissioners share his views – only they don't express them publicly.
Once I took a young colleague to a Central Excise office. We met an Additional Commissioner who had unadulterated contempt for his thoroughly useless Commissioner. We met the Commissioner who told us that his Chief Commissioner was a joker. We called on the Chief Commissioner who honestly believed that he was slightly greater than Manmohan Singh and Montek Singh put together and was sorry that the dunces sitting in the Board would not understand taxation or economics. My young colleague understood the Department thoroughly.