Service Tax - Appeal to Tribunal - Committee of Chief Commissioners -Courts not to interfere in administrative function
SUB-SECTION (2) of Section 86 reads:
"(2) The Committee of Chief Commissioners of Central Excise may, if it objects to any order passed by the Commissioner of Central Excise under section 73 or section 83A direct the Commissioner of Central Excise to appeal to the Appellate Tribunal against the order".
In an interesting case, when a Commissioner's order was received in the Chief Commissioner's office, this is how the review took place:
1.The Superintendent in the Chief Commissioner's office prepared a note containing brief facts, summary of the adjudication order and an analysis of the order stating that the Commissioner had erred and suggesting that the Committee of Chief Commissioners review the adjudication order, for preferring an appeal.(When a Superintendent produces a masterpiece like this, there is no higher authority to contradict him.)
2.The note was signed by the Superintendent on 29.06.2012; by the Deputy Commissioner concerned on 11.07.2012; and by the Chief Commissioner (DZ) on 14.07.2012;
3.The Note also had an attached ‘draft review order'.
4.After the Chief Commissioner (DZ) signed the note, the note including the draft order was sent to the other Chief Commissioner (CZ).
5. In this Chief Commissioner's office, another Superintendent put up another note with brief facts of the case; a summary of the adjudication order and its analysis.This note indicated that the CCE (DZ) had proposed review of the adjudication order, had signed the proposed review order and forwarded the same for concurrence of the CCE (CZ);
6.This note prepared by the second Superintendent on 23.07.2012 was signed by the Additional Commissioner and Chief Commissioner on the same day.
And the Review proceedings were completed and appeal successfully filed in CESTAT.The Tribunal observed, "The respective notes were signed by the respective Chief Commissioners without anything to indicate independent consideration of the relevant issues and of agreement with the administrative analysis at lower levels, as to the appropriateness of preferring an appeal to the Tribunal ”.
And the Tribunal held that as the record neither records nor discloses due application of mind, the authorisation to prefer the appeal is unsustainable.And the appeal was dismissed -
The Revenue took the matter in appeal to the High Court.The High Court observed, " The scope of enquiry of a Court into administrative acts is limited.This is all the more so when the act in question is neutral (i.e.the filing of an appeal), rather than an order placing a demand upon the assessee or otherwise prejudicial to the interests of the assessee.An order under Section 86(2) is for the filing of an appeal, which will be considered on merits by the CESTAT. Whilst there is a requirement for a meaningful procedure to be followed in all administrative acts, including the present one, the Court must view the deliberation by the concerned authority in context.In this case, the respective Superintendents of the two Chief Commissioners prepared detailed notes concerning the facts, law applicable and the need for a reconsideration of the order of the Commissioner. This is not disputed. Equally, it is not disputed that these notes were placed before the Chief Commissioners.The fact that this was done independently for the two Chief Commissioners, who did not sit together, is not in question and does not affect the legality of the impugned order.The Chief Commissioners endorsed these proposals, and thus, the appeal was filed.The fact that the Chief Commissioners did not, on the record, record independent reasons for concurring with their respective subordinates does not render the authorization void. There is no such requirement in Section 86(2), and this Court does not propose to add another layer to these administrative proceedings."
The High Court not only set aside the Tribunal order, but also imposed a cost of Rs.30,000 on the assessee.In this case the appeal to Tribunal was filed by Revenue and the Tribunal dismissed the revenue appeal. Revenue appealed to the High Court and the assessee was imposed a cost.He was never the initiator of litigation at any stage, but still he had to bear cost.()
Now the assessee entered the field of litigation.He filed an SLP against the High Court order.In July 2014, the Supreme Court dismissed the SLP with a single line order - Special leave petitions are dismissed.().
The assessee filed a Review Petition against this dismissal.
A Larger Bench of the Supreme Court recently ordered, "We have gone through the Review Petitions and the connected papers.We see no reason to interfere with the order impugned.The Review Petitions are, accordingly, dismissed." ()
Amen!