The FARCE Called Adjudication and what Board understands
A Citizen, under the RTI Act asked the CBEC for certain information on the process of adjudication in the Department, vide his application dated 21.04.2014.
DETAILS OF THE INFORMATION SOUGHT:
In customs and central excise department, departmental officers have been entrusted with the function of adjudication authorities at difference level. From, various publications and websites, it is gathered that quality and level of the adjudication orders has drastically been declined. In most of the cases, adjudicating authorities do not apply their mind to the facts and the material of the case but pass on the files for their sub-ordinate staff like Inspectors and Superintendents to prepare full adjudication orders on their behalf, even without deciding the case on the files. Even in some cases, the adjudicating authorities are not aware of the facts and cannot redraft the order after going through the order drafted by the sub-ordinate officer.
In the public interest following information is sought under the RTI Act.
(i) Whether there is any adjudication manual prevalent in the central excise department, which is required to be followed by all the adjudicating authorities? If yes the details thereof.
(ii) Whether it is the duty or responsibility of Superintendent OR Inspector OR Senor Tax Asstt. OR Tax Assistant posted in adjudication branches to prepare or draft or make adjudication orders for Commissioner, Additional/Joint/Deputy/Assistant Commissioner.
(iii) Whether the following instructions are being followed, which are available at department's website http://www.cbec.gov.in/draft-circ/dft-adj-manual-29nov11.pdf (page 25) and also at the reporters website http://www.taxindiaonline.com/RC2/pdfdocs/wnew/CBEC_Draft_Adjudication_Manual.pdf
Recommendations by the office Assistants or other Sub-ordinates for the final decision of the cases:
An officer when adjudicating a case under the Central Excise Act and Rules or the Customs Act or Finance Act, 1994, acts in a quasi-judicial capacity and that he should, after the enquiry, take an unbiased decision in each case applying his own mind to the materials disclosed in enquiry independently. He has to apply his own mind to the facts and circumstances of the case and reach at his own decision unfettered by anything else. From this it follows that even the narration of facts in an adjudication order has to be drafted by the adjudicating officer himself. From this point of view, any positive suggestion in regard to the penalty etc. whether in an office note or elsewhere is liable to be regarded as an interference with the functions of the Adjudicating Officer thereby vitiating the decision. Office notes should not, therefore, go to the extent of recommending the final decision or the actual penalty, in the adjudication of offence cases.
(iv) Is it true that the adjudication order is to be drafted by the concerned adjudicating authority himself/herself without any interference or without any legal opinion from sub-ordinate staff so that their decisions should not be influenced?
(v) Whether the departmental instructions allow the making of adjudication order by sub-ordinate staff for the adjudicating authority, under the garb of instruction on notesheet put up brief facts of the case?
(vi) Whether there have been cases of threat, duress, pressure, inducement or promise, by the adjudicating authority to his sub-ordinate staff (TA/STA/Insp./Supdt.) such as when the sub-ordinate staff expressed their inability to make the adjudication order for him/her. These threat, duress, pressure and inducement or promise can be of following types
(a) Threat of spoiling the ACR/APR,
(b) Threat of issuing memo/charge sheet/suspension,
(c) Warnings/calling for explanations in office notes,
(d) Verbalscoldings,
(e) Pressuring and demoralizing the staff by rude or discourteous behavior,
f) Punitive transfer of any kind, etc.
(vii) If so, the number of such cases Central Excise Commissionerate wise may be furnished in the following table form. Such cases happened in the financial years 2011- 12, 2012-13 and 2013-14 may be given.
Name of Commissionerate No.of cases of nature as mentioned in:
Clause (a) of para (vi) above.Clause (b) of para (vi) above.Clause (c) of para (vi) above.Clause (d) of para (vi) above.Clause (e) of para (vi) above.Clause (f) of para (vi) above.
(viii) What disciplinary action lies upon the adjudicating authority, who has got his subordinate subject to threat, duress, inducement or promise of the kind given in para (vi) above
(ix) What disciplinary action lies upon the adjudicating authority who is found to be getting his/her adjudication orders made from sub-ordinate staff?
(x) In case no stenographer is provided to such adjudicating authority, whether the adjudicating authorizes are required to write the discussions and findings part and order part of adjudication order, in their own hand on the note sheet or type themselves on their personal computers, before drafting of complete orders.
(xi) Since most of the adjudicating authorities have been provided with the desktops and laptops, they are supposed to be having computer skills. Whether such officers are required to make orders on their own laptops/desktops and issue fair orders from their end without involving any sub-ordinate officer. Whether this practice is being followed in the field formations or not. If not, the reasons may kindly be broadly furnished.
And here is the answer he got from the exalted Board vide its reply dated 05.06.2014.
Information Provided:
The information sought pertains to adjudication manual and the conduct of the Adjudicating authorities. It bas been observed that vide BMB No. 62/09 issued vide F. No. 296/04/2009-CX-9 dated 20.10.2009, the work of updating CBEC manuals (including adjudication manual) was being co-ordinated by the DGICCEAccordingly RTI application is being transferred to the CPIO, office of the DGICCE, IP Estate, New Delhi - 110002 under Section 6(3) of the RTI Act, 2005.
Is it not atrocious? The RTI applicant has not asked anything about updating of the Adjudication Manual. He simply asked whether there existed a manual and of course certain information on the adjudication process. And the bright Board shunts it to the DGICCE. What will the DG do now? The entire Government machinery will be misused to ensure that information is not provided. It is more than two years since the Board put up the Draft Adjudication Manual and nothing further is heard about it. There is another atrocity. While replying to the applicant, they removed the Draft Adjudication Manual from the Departmental website.
Should we assume that the Board does not understand the simple questions asked by the applicant or are they too smart? If the Board cannot answer a few questions on adjudication, can such a Board's officers be entrusted with the task of adjudicating cases involving Crores of rupees?
Adjudication in most cases is a commercial activity and on that ground, they could have refused to furnish the information and that would have been a far more accurate reply than this patently arrogant denial of information and making the applicant move from pillar to pillar.
How can anyone explain to the Finance Minister or the Prime Minister that their officers are bent upon frustrating every effort and scheme of the Government and they have converted it into a fine art in which they alone can excel?
Maybe the Revenue Secretary whom they are trying to unseat can understand the game and call the bluff.