High Court Order not followed because the party is different!!!!!!!!!!!!!
Blatant Judicial Disobedience by Young IRS Officer - High Court directs CBEC to issue Circular
A new brand of young officers are joining the Department whose Himalayan arrogance is comparable in quantity and quality only to their humungous ignorance.
This is the story of a young lady IRS officer who joined the Department in 2009 and in 2011 was posted as an Assistant Commissioner of Central Excise in a vibrant Division in a Commissionerate, who has shown her utter lack of respect for the judiciary and orders of higher authorities.
In a refund claim before her, the party cited an order of the Gujarat High Court in Commissioner of Central Excise and Customs vs. NBM Industries reported in , in which it has been held by the Court that on inputs used in manufacturing of goods cleared by DTA units to 100% EOU refund of CENVAT credit is available and it could not be denied on the ground that it was the case of deemed export and refund would be granted only in case of physical export.
Despite the above binding direct decision of the Court, the Assistant Commissioner, Central Excise and Customs Division, Vapi in her orders has rejected the refund claims of the claimant on the ground inter alia that the decision of the High Court in NBM Industries is in the case of another assessee and not in the case of claimant and each one must fight its own battle and must succeed or fail in such proceedings and also on the ground that the decision of the Madras High Court in the case reported in is against the assessee .
She is in Vapi and the Gujarat High Court is her jurisdictional High Court. She refuses to follow the jurisdictional High Court and wants to follow the Madras High Court judgement. It may be noted that the Gujarat High Court had taken into consideration the Madras High Court judgement while deciding the NBM Industries case and came to the conclusion it did and this learned Assistant Commissioner had no business to distinguish between the Gujarat High Court and Madras High Court judgements.
Without following the long winding appellate channels, the assessee approached the High Court.
In the High Court, the Counsel for the Revenue was not in a position to defend the impugned orders passed by the Assistant Commissioner on merits. He tendered unconditional apology and has requested not to take any further action against the Assistant Commissioner as she has recently joined the department in the year 2011 and she has acted bonafidely to protect the interest of the revenue.
The High Court observed that it is required to be noted that the decision of Division Bench of this Court in the case of NBM Industries is binding upon the respondent. Merely because the said decision is in the case of another assessee , the respondent could not have ignored the same and/or not followed the same by holding that it is not binding ruling as the same is in case of another assessee.
The High Court further observed,
"The Adjudicating Officer acts as a quasi-judicial authority. He is bound by the law of precedent and binding effect of the order passed by the higher authority or Tribunal of superior jurisdiction. If his order is thought to be erroneous by the Department, the Department can as well prefer appeal in terms of the statutory provisions contained in the Central Excise Act, 1944.
As such by not following the binding decision of this Court in the case of NBM Industries (Supra), the respondent adjudicating authority has rendered herself liable for the prosecution/proceedings under the Contempt of Courts Act.
To maintain the rule of law and judicial discipline, the lower authority is bound by the decision of the higher appellate authorities/courts. However, considering the fact that there is no other malafide alleged and that the respondent is reported to be recently joined the department in the year 2011 and the unconditional apology tendered, we close the proceedings so far as the proceedings under the Contempt of Courts Act are concerned."
As the Court felt that despite clear and unequivocal message by the pronouncement of the decisions by the Supreme Court as well as High Court, the message has not reached to the concerned authorities, the CBEC was directed to issue a detailed circular to all the adjudicating authorities considering the observations made by this Court in the present judgment and order as well as the law laid down by the Hon'ble Supreme Court in various decisions referred to in the present judgment and order, within a period of 30 days from the date of receipt of the present order so that such eventuality may not happen again and again.
The Court ordered cost of Rs. 5000/- in each petition along with the refund.
The Assistant Commissioner who was so revenue conscious has ended up paying interest for the delayed refund and costs to the assesse and narrowly escaped contempt proceedings. All because two years in the academy and two years in the field made her believe that she is a super power far above the Courts.
By virtue of powers wasted on such officers who have only contempt for the Laws and Courts, the Revenue loses heavily.
This kind of disrespect for Law and disobedience of higher judicial authorities is more dangerous than corruption and just like we have a Prevention of Corruption Act, we should have a Section in the Central Civil services Conduct Rules for Prevention of disrespect for and disobedience of higher judicial authorities - that even if they are not punished for contempt of Courts, they should be liable to departmental punishment under Conduct Rules.
We understand that the Board is likely to issue the Circular very soon as directed by the High Court. But then blatant disregard for the Board Circulars is another hallmark of the service and the helpless Board usually takes a serious view - and nothing more .
And we hear from the corridors of the Gujarat High Court that the Central Excise Department is still in the High Court premises - maybe trying to get an extension for paying the refund and costs and issuing that Circular. And the case is posted for 13.6.2014.