Proposal for CESTAT Hyderabad Bench is Seven Months Pregnant - Delivery in Ninth Month Not Assured - CESTAT President
ADDRESSING a meeting of the FAPCCI at Hyderabad on Saturday, Justice Goda Raghuram, the CESTAT President said that the proposal to start a CESTAT Bench at Hyderabad is seven months pregnant but he was not sure of a safe delivery in nine months. He said that he had strongly pursued for more benches of the CESTAT as more than 90,000 cases are pending. He was confident of getting at least four new benches as the Finance Minister himself was very keen on starting more Benches to release the Revenue locked up in litigation. There is a feeling that the CESTAT and ITAT together hold the key to the Consolidated Fund of India.
In his highly intellectual speech laced with succinct humour, the President cautioned that sanction of a bench is different from a functional Bench. There were problems in getting Members selected for the Tribunal as the selection of Judicial Members was a long drawn out procedure and involves antecedents' verification. Regarding Technical Members, because of the anticipated cadre review, whereby many Commissioners and Chief Commissioners are likely to get higher scales, not many of these officers may opt for becoming a Member of the CESTAT as there is tremendous drudgery in the job without commensurate perks. Till the additional Benches are functional, the President promised to have frequent Circuit Benches in cities like Hyderabad.
Cost Analysis of New Benches:
He said the Government should not be unduly worried about the cost of establishing new Benches as it is part of the constitutional requirement of not levying taxes except by the authority of law and these tribunals are required to test the issues connected with the levies. He drew a comparison with posting soldiers at Kargil. He said in the last sixty five years there was a war for only ten days in Kargil. If we go by the cost benefit analysis, we should not post soldiers in Kargil and lose kargil, but this is not the way things are done.
Training of DRs:
The President said that he is planning to organise judicial training programmes for the Authorised Representatives from the Department so that the Department's case is properly and judicially represented. He plans to invite sitting or retired High Court and Supreme Court Judges and maybe use the services of the National Judicial Academy for this purpose. He said that the Revenue Secretary has supported this plan and it will be implemented soon.
Adjudication by Departmental officers
. While there is a complaint that departmental adjudication is totally in favour of the department, he said the problem is the absence of judicial training and understanding. Law has evolved over years of experience, but when an adjudicator at the level of AC sees a provision for the first time, he feels that he has discovered something new and he is the only one to analyse and interpret the provision. He said that a person who sees the latest version of Sholay without having seen the earlier version may feel what he has seen is fantastic. He said as a young lawyer, he also felt that he was the first one to analyse a provision of Law.
Service Tax is ATM for the Government - from others' accounts:
The Justice compared Service Tax to an ATM. Whenever the Government wanted money, it introduces a new provision; it is as simple as using an ATM card withdrawing money from others' accounts. He said that Service Tax being a new levy, issues are not settled. He cited a particular case where GMR entered into an agreement with Honda Motor whereby Honda sponsored GMR's Delhi Daredevils in the IPL League cricket matches. Sponsorship in relation to sporting events was excluded from the purview of Service Tax during that period. The Commissioner held that what Honda sponsored was GMR and since GMR is not a sporting event, they were not covered under the exclusion and so were liable to pay Service Tax. The Justice wondered why anyone would sponsor GMR if not for the Cricket.
In this case, Justice Raghuram had remarked, "The conclusion recorded by the adjudicating authority was based on a fundamental misconception of the purpose of the sponsorship agreement; the reasons recorded by the adjudicating authority are misconceived and unsustainable." In an identical case, the judge observed, "The adjudicating authority cannot engraft its own policy choices and preferences to the legislatively conferred immunity. The above analysis of the adjudication authority, creative as it goes, defies comprehension."We will bring you the cases tomorrow.
Continuation of Stay beyond 365 days:
Referring to a Member's apprehension to the recent amendment that a stay granted by the Tribunal would lapse on completion of 365 days, the President said that the decision of the Supreme Court in Kumar Cotton Mills - 2005-TIOL-42-SC-CESTAT would still apply and the CESTAT will still have the power to extend the stay beyond 365 days as it did in the earlier period when the stay was valid only for 180 days.
Quote of the Speech: Knowledge is a progressive elimination of ignorance.