Binding Nature of Board Circulars - Circulars Contrary to Court Orders Should not be Followed - CBEC
THE CBEC deserves a big bouquet of congratulations and thanks for this masterly circular. This is real ‘ease of doing business'.
In Ratan Melting & Wire Industries Vs Commissioner of Central Excise, Bolpur - a Constitution Bench of the Supreme Court held:
So far as the clarifications/circulars issued by the Central Government and of the State Government are concerned they represent merely their understanding of the statutory provisions. They are not binding upon the court. It is for the Court to declare what the particular provision of statute says and it is not for the Executive. Looked at from another angle, a circular which is contrary to the statutory provisions has really no existence in law .
Now in a major step in reducing frivolous litigation, Board clarifies,
Board Circulars contrary to the judgements of Hon'ble Supreme Court become non-est in law and should not be followed. Reference of such circulars should be made to the Board so that further action of rescinding these circulars can be expeditiously taken up. Board may also initiate such action suo-moto. All pending cases on the issue, including those in the Call-Book, decided after the date of the judgement should, confirm to the law laid by the Hon'ble Supreme Court or High Court, as the case may be, irrespective of whether the circular has been rescinded or not.
The above direction would also apply to the judgements of Hon'ble High Court where Board has decided that no appeal would be filed on merit. However, where appeal has been filed by revenue against the High Court's order, pending adjudication should be transferred to the Call-Book and such appeals should be kept alive.
There seems to be a perceptible change in the attitude of the Board - for the better.
While lavishly praising the Board for this very laudable circular, I cannot refrain from pointing that there are a couple of typographical mistakes, which should have been avoided.
CBEC Circular No. 1006/13/2015-CX., Dated: September 21, 2015