Litigation - Issue settled by SC - CBEC refuses to give up - in spite of advice by ASG
BOARD's Circular No. 18/2006-Cus dated 05.06.2006 clarified that the SAD is payable by the importer on the imports made under DEPB scheme. The said circular was challenged before the High Court of Gujarat, which vide its order dated 25.07.2012 quashed the said Circular dated 05.06.2006. The SLP filed by Department against the said order of High Court was dismissed by the Supreme Court vide their order dated I5.02.2013.
Board received a proposal from the Commissioner of Customs, Ahmedabad for filing of Review Petition against order dated 15.02.2013 passed by the Supreme Court. The matter was examined by Board and the case was referred to the Ministry of Law & Justice regarding feasibility of filing Review Petition.
The ASG has opined against filing of Review Petition in the matter stating that no purpose will be served by filing the Review as the Supreme Court will not entertain this matter.
In an identical case, the ASG has opined as under:
"Even otherwise, I am unable to understand what purpose will be served by filing a review petition in a case where the Hon'ble Supreme Court has dismissed a SLP in limine without assigning any reasons. An in limine dismissal merely means that the Hon'ble Supreme Court did not find it an appropriate case to consider the matter. Such an order does not amount to law declared under Article 141 of the Constition of India (Kunhayammed Vs State of Kerala - )" [The spelling of Constitution is as given in the Board letter - as pointed out by DDT, the CBEC does not have a mechanism to check spellings]
The Board got its straw from Kunhayammed.
Now, the Board feels that since the Department have(?) prima facie a strong case on merit in its favour, field formations should take up all such cases (involving aforesaid issue) for filing of Appeal before the Courts/Tribunal.
Is it such a big issue involving hundreds of crores that they have to flog a dead horse? And is this what Modi wants from his babus? Is this an attempt to keep the Commissioners busy to justify the great cadre review?
And if the Department has (have) a strong case, why was it not able to convince the Gujarat High Court and what makes it believe that the Gujarat High Court judgement will not be followed by other High Courts and Tribunal? And what will happen if the same issue reaches the Gujarat High Court again? The Department lost because of its poor drafting skills - in fact the Gujarat High Court called the department's contention a legal fallacy.
The Board's letter is addressed to all Chief Commissioners and DGs of DRI and CEI. Maybe the super sleuths will now pounce upon anyone who had imports under DEPB.
A copy of the letter is also marked to the JS, Drawback with a request to consider suitable amendment in the relevant provisions, to safeguard revenue.
They should also convince Arun Jaitley to make the amendment retrospective.
Maybe the Board should try for a constitution amendment to remove the jurisdiction of High Courts and the Supreme Court on tax matters. The Under-Secretary in the Board should be the final authority on all matters pertaining to taxes.