Functioning of Review Committee of Commissioners - CBEC Instructions
ADJUDICATION Orders of Commissioners are reviewed by a Committee of two Chief Commissioners and those of Commissioners(A) are reviewed by a Committee of Commissioners. Appeals are filed before the CESTAT based on the review and authorisation by these committees.
Board has found that the appeals against the orders of these Commissioners are dismissed on technical grounds. Scrutiny of several judicial pronouncements on the subject reveals that there are three broad categories of defects noted in such orders, which led to the dismissal of Departmental appeals. Defects in issuance of review cum authorization are seen to be a recurrent feature in most of the orders passed by the High Courts and the Tribunal. In some cases, appeals have been dismissed on account of absence of review- cum- authorization given by the Committee for filing appeal. This is an incurable legal infirmity and the law does not provide for curing this defect. Several orders have been dismissed by the Tribunal as well as the High Courts on the grounds such as signing of authorization by one Commissioner instead of both the Commissioners constituting the committee, undated authorization, date appearing below the signature not indicating the year etc. These technical defects have led to the conclusion being drawn by the Tribunal that authorization was not proper and valid.
Another recurrent omission, noted in several orders, is lack of application of mind by the members of the committee showing any meaningful consideration of the issue being examined. This was the reason for dismissal of appeal by the High Court of Delhi in the case of Kundalia Industries reported in 2011-TIOL-930-HC-DEL-CX.
The third main reason for several dismissals of the appeals filed by the Department is that no meeting was held by the committee to show meeting of mind or ad idem . This has been the stated reason in several recent decisions of Delhi Bench of the Tribunal.
Taking note of the judgments in the case of Kundalia Industries cited above, Grand Prints Ltd reported in and several such judgments of the Tribunal and the High Courts, the CBEC wants the following precautions to be taken by the Commissioners constituting the committee while dealing with the review files-
(i) The notings in the file and other relevant records should show meaningful consideration and application of mind by the committee.
(ii) It should be ensured by the members of the committee that review cum authorization orders are passed in each case.
(iii) Procedural infirmities in the review cum authorization viz. signature of one Commissioner, signature without date, name not mentioned below signature etc. should be avoided.
(iv) The Members of the Committee may make use of Video Conferencing for conducting meeting wherever feasible.
The above omissions are only indicative and not exhaustive. These have been observed in various judgments by the Tribunal and High Courts on more than one occasion.
The above precautions may be adopted by the committee of Chief Commissioners also.
Board also urges that due seriousness and diligence should be attached to the quasi-judicial function of review and the same should not be an idle formality.
Board has to tell its senior-most officers like Commissioners and Chief Commissioners to be a little more serious in their work!
CBEC F.No.390/Review/2/2012-JC., Dated: November 23, 2012