Allahabad Bench of the CESTAT - High Court still Persistent

By Vijay Kumar

IT is only because of the consistent monitoring by the Allahabad High Court that a Bench of the CESTAT has started functioning from Allahabad. The Allahabad effect has spread to other places also and Chandigarh and Hyderabad Benches are likely to start functioning soon.

But it is not all smooth flow in Allahabad.

In the hearing on 28.10.2015, in the High Court, the CESTAT Registrar submitted that: "The Commissioner, Central Excise, Allahabad had initially given two rooms No.210 and 220 from where the Registry of the Tribunal started functioning w.e.f. 1.9.2015. Subsequently, the Commissioner vide letter dated 15.9.2015 directed the Registry to function from room Nos.26 and 27, based on which the Registry of the Tribunal vacated room Nos.210 and 220 and started functioning from room Nos.26 and 27, which are located on the ground floor. The Registrar has pointed out that the Commissioner has now written a letter dated 7.10.2015 requesting the Tribunal to vacate room Nos.26 and 27 on the pretext that the Registry is now functioning in the Red Building and that the rooms are required for the Chief Commissioner (AR)."

According to the Registrar, two rooms, namely, room Nos.26 and 27 are required by the Registry for keeping their own records. It has also been pointed out that a Bar Association is in the process of being formed and a request for allocating a space has been made.

The Registrar has also pointed out that there is a shortage of Members and out of the strength of 32 Members there are 12 vacancies for which advertisements had already been made in the past and interviews have also been held and appointments of judicial and technical members are in the process under the chairmanship of an Hon'ble Judge of the Supreme Court. It is expected that the outcome of the selection process would be notified in the near future by the Department of Revenue.

During the course of submission it was pointed to the Court, that there are three rooms in the Red Building in which a Guest House is running, which is maintained by the Central Excise Department. If these three rooms are given to the Tribunal a permanent Bench could function adequately.

In this regard, the counsel for the Central Excise Department pointed out that a Guest House is essential and should be allowed to continue to be used as a Guest House.

The Court was informed, that four more rooms in the main building are also being used as a Guest House.

The Court wanted that a clear cut affidavit on this aspect should be given by the Excise Commissioner, Allahabad.

The intervener pointed out that complete compliance of the orders of this Court is not being followed by the Tribunal or by the Ministry of Finance, namely, that the direction that the Tribunal should function on all days from October, 2015 is not being followed. The intervener has brought on record an order No.138 of 2015 issued by the Registrar, CESTAT indicating the sitting of the Members of the Tribunal from 5.10.2015 to 4.12.2015. A perusal of this order indicates that a Member Judicial will sit on 5.10.2015 and thereafter from 19.10.2015 to 4.12.2015 except from 19.11.2015 to 20.11.2015 and this Member will function as a Single Member Bench of the Tribunal. The Division Bench matters would be taken up from 12.10.2015 to 16.10.2015, i.e., for 5 days and again from 16.11.2015 to 20.11.2015.

The Court felt that it is not substantial compliance of its order and directed the Registrar to inform the President of the CESTAT to pass appropriate orders increasing the number of days for functioning of the Tribunal (Single and Division Bench) as an interim measure till such time the permanent vacancies are not filled. At the same time, the Ministry of Finance should take remedial measures for posting/transfer of Members at Allahabad.

The Court directed:

(1) The Registrar, Tribunal will indicate the further steps which he has taken with the Ministry of Finance with regard to establishment of the permanent Bench and/or with the Central Excise Commissioner with regard to handing over of the remaining portion of the Red Building.

(2) The Registrar, Tribunal will also inform the Court of further orders with regard to the functioning of the Tribunal on a regular basis, increasing the number of days of sitting of Single and Division Benches of the Tribunal.

(3) The Ministry of Finance will also file an affidavit indicating the remedial measures they have taken with regard to posting/transfer of Members at Allahabad, i.e., Judicial and Technical Member on a permanent basis.

(4) The Ministry of Finance will also file an affidavit indicating the action taken at their end, on the request of the Registrar Tribunal with regard to the establishment of a permanent Bench at Allahabad. If the request of the Tribunal for using the Red Building on a permanent basis is accepted, necessary orders to that extent be passed giving necessary instructions to the appropriate authorities. The Court has been informed, that the Central Board of Excise and Customs and the Director General HRD, Ministry of Finance, Department of Central Excise are looking after the Red Building and, therefore, necessary orders to that extent may be passed. In the event the building under construction at 34-A, M.G.Marg, Allahabad constructed by the C.P.W.D., is found appropriate, necessary orders to that extent be passed in consultation with the relevant Department.

(5) the Commissioner of Central Excise and Service Tax, Allahabad, respondent No.3 not to insist in asking the Registrar, Tribunal to vacate room Nos.26 and 27. In the event the Commissioner Central Excise, Allahabad is facing any difficulty it should file a separate affidavit explaining their difficulty before the Court and for appropriate direction.

(6) the Commissioner of Central Excise and Service Tax, Allahabad to file an affidavit indicating the number of Guest Houses, which are being maintained by the Central Excise Department and the necessity for retaining the Guest House in the Red Building.

The Court also found that there is a conflict of interest to some extent between the Commissioner, Central Excise, Allahabad and the Customs Excise and Service Tax Appellate Tribunal, New Delhi and its functioning of a Regional Bench at Allahabad in the Red Building. Both the parties, namely, respondent Nos.2 and 3 are appearing through a common counsel, namely, Sri R.C. Shukla. In order to avoid any conflict of interest in future, the Registrar, Tribunal is directed to engage a separate counsel.

I was told by a senior officer of the Allahabad Commissionerate that the Commissionerate is extending all possible help to the Tribunal and that is why there was no expenditure for the Bench as we reported in DDT 2719 05 11 2015.

The story obviously doesn't end here. We will bring the rest of the story soon.