TIOL-DDT 2730 · the untouched capture
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<p><strong><font color="#663399" size="3" face="Verdana, Arial, Helvetica, sans-serif">TIOL-DDT 2730</font><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif"></font><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><br>
23 11 2015 <br>
Monday </font></strong></p>
<p align="center"><font size="3" face="Georgia, Times New Roman, Times, serif"><strong><em><font color="#006600">Government Servants not happy with Pay Commission - to protest - ye dil mange more </font></em></strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>GOVERNMENT</strong> servants don't seem to be happy with the Pay Commission Report. The National Joint Council of Action (NJAC) of Central Government Employees has strongly protested and decided to observe a massive demonstration on 27th November 2015 all over India. They say: </font></p>
<blockquote>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">1. The Central Government Employees are totally disappointed with the adverse recommendations of the Seventh Pay Commission. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">2. While giving a bonanza to higher level officers, the commission has completely ignored low paid employees. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">3. The demand of the staff side of the National Council of JCM to fix the minimum pay at Rs 26,000 was completely rejected by the pay panel and this was arbitrarily fixed at Rs 18,000. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">4. Public was misled by the statement that a hike of 23.5% was granted to employees whereas the actual increase was only 14.29%. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">5. While the minimum wage is fixed at Rs 18,000, secretary level officers will be paid Rs 225,000 and the cabinet secretary's salary is fixed at Rs 250,000. The National Council - JCM (Staff Side) had demanded that the ratio between minimum pay and maximum pay should be not more than 1:8 but the CPC has kept the ratio as 1:13.8 </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">6. Central Government employees are totally upset, dissatisfied and disappointed. </font></p>
</blockquote>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">DDT was subject to some vitriolic attack, mostly from Central Excise Superintendents, for its comments on the Pay Commission. Choicest abuses flew in for mentioning that it was a bonanza for the babus. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">I spoke to a senior Revenue officer of absolute doubtless integrity, whose words are worth quoting and following by all government servants. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">"<em>It is a poor country and any hike the government gives to its employees should be gratefully accepted. I am a<strong> public servant </strong> I know that I cannot hope to get the salaries that some others get and I knew this when I joined the service. The day I decide that money is the most important criterion for a job, I will quit and try to do something that will give me money - if I can</em>.” </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Somewhere down the line our babus forgot that they are ‘civil servants' - they are neither civil nor are they servants. The citizens who are their masters are totally ignored. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Government must have also expected this kind of reactions and must be ready to give a little more than what the Pay Commission recommended. Great economists (especially those among the government employees) are floating a theory that Pay Commission will spur a great economic revival in the country. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">To start with about 15 to 20 percent of the hike will come back to the Government as Income Tax. When the Government employees spend this ‘more' money, it will bring in excise duty and service tax. Manufacture will get a boost with higher demand for luxury goods like cars and TVs and when companies earn more profit, they will pay more income tax. All a win win win situation for all concerned! </font></p>
<p align="center"><font size="3" face="Georgia, Times New Roman, Times, serif"><strong><em><font color="#006600">COFEPOSA - Facility of Legal Practitioner not allowed to Detenu - Detention Quashed: SC</font></em></strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">‘<strong>CONSERVATION</strong></font><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif"></font></strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif"> of Foreign Exchange and Prevention of Smuggling Activities (COFEPOSA) Act' was once a dreaded legislation, using which even several Customs officers were detained for long without trial. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Putting somebody in jail is a very serious action in a democracy where life and liberty are constitutional guarantees. When you detain somebody and that too as a preventive action, the statute and procedures are to be strictly followed in letter certainly and spirit also preferably. If any of the stipulations are not followed, the Courts have not hesitated to strike down detention. But usually the bureaucrats do not have the same concern for liberty as do the judges. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"style="background-color:#DFF3CB" span="span">Will a detenu under COFEPOSA be entitled to the facility of the service of a legal counsel before the Advisory Board ? </font><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Supreme Court had decided this issue more than thirty years ago. The Supreme Court had in AK Roy observed, </font></p>
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<p align="justify"><em><font size="2" face="Verdana, Arial, Helvetica, sans-serif">"We must therefore hold, regretfully though, that the detenu has no right to appear through a legal practitioner in the proceedings before the Advisory Board. It is, however, necessary to add an important caveat. The reason behind the provisions contained in Article 22(3)(b) of the Constitution clearly is that a legal practitioner should not be permitted to appear before the Advisory Board for any party. The Constitution does not contemplate that the detaining authority or the government should have the facility of appearing before the Advisory Board with the aid of a legal practitioner but that the said facility should be denied to the detenu. In any case, that is not what the Constitution says and it would be wholly inappropriate to read any such meaning into the provisions of Article 22. Permitting the detaining authority or the government to appear before the Advisory Board with the aid of a legal practitioner or a legal adviser would be in breach of Article 14, if a similar facility is denied to the detenu. We must therefore make it clear that if the detaining authority or the government takes the aid of a legal practitioner or a legal adviser before the Advisory Board, the detenu must be allowed the facility of appearing before the Board through a legal practitioner. </font></em></p>
<p align="justify"><em><font size="2" face="Verdana, Arial, Helvetica, sans-serif">We are informed that officers of the government in the concerned departments often appear before the Board and assist it with a view to justifying the detention orders. If that be so, we must clarify that the Boards should not permit the authorities to do indirectly what they cannot do directly; and no one should be enabled to take shelter behind the excuse that such officers are not "legal practitioners" or legal advisers. Regard must be had to the substance and not the form since, especially, in matters like the proceedings of Advisory Boards, whosoever assists or advises on facts or law must be deemed to be in the position of a legal adviser. </font></em></p>
<p align="justify"><em><font size="2" face="Verdana, Arial, Helvetica, sans-serif">We do hope that Advisory Boards will take care to ensure that the provisions of Article 14 are not violated in any manner in the proceedings before them."</font></em></p>
</blockquote>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Supreme Court made a marvellous observation, </font><em><font size="2" face="Verdana, Arial, Helvetica, sans-serif"style="background-color:#F3DBCF" span="span">"Serving or retired Judges of the High Court will have no difficulty in understanding this position. Those who are merely "qualified to be appointed" as High Court Judges may have to do a little homework in order to appreciate it.</font></em><font size="2" face="Verdana, Arial, Helvetica, sans-serif"style="background-color:#F3DBCF" span="span">" </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">This is the difference between a Judicial Member and a Technical Member. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">On Friday, the Supreme Court quashed the detention in a case where the detenu was not given the opportunity of having a legal counsel before the Advisory Committee, even though the Government was represented by its officers. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"style="background-color:#F3DBCF" span="span"><strong>Procedure has to be followed for even habitual offender: </strong></font><font size="2" face="Verdana, Arial, Helvetica, sans-serif"> One of the arguments of the Government was that the detenu was a habitual offender and, therefore, he should not be shown any indulgence. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Supreme Court held: </font></p>
<blockquote>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">1. The Court can not uphold the detention order on such submission, and if the petitioner is a habitual offender and has past criminal record, as alleged by the respondents, it was all the more necessary for the respondents to have followed in letter and spirit the procedure laid down in A.K. Roy's case before passing the impugned order of detentions. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">2. once the legal infirmity pointed out by the petitioner in the proceedings before the Advisory Board is held made out then the impugned detention order is rendered bad in law and can not be sustained. </font></p>
</blockquote>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Thus the Government is forced to release a detenu all because he was denied a right to have a lawyer. Babus get very angry if they are told the law, especially by a lawyer. If somebody cites the Law, the attitude of most babus is "Okay, you quote the laws - we know how to fix you.” </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Please see<a href="http://www.taxindiaonline.com/RC2/inside2.php3?filename=bnews_detail.php3&newsid=25291" target="_blank"> Breaking News</a></strong> for the Supreme Court case. </font></p>
<p align="center"><font size="3" face="Courier New, Courier, mono"><strong><em><font color="#006600" face="Georgia, Times New Roman, Times, serif">Customs - Govt Withdraws Exemption for White Butter </font></em></strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>AS</strong> per Sl. No. 9 of the Table to Notification no. 12/2012 - dated 17.03.2012,<em> White Butter, Butter oil, Anhydrous Milk Fat upto an aggregate of fifteen thousand metric tonnes of total imports of such goods in a financial year</em> are exempted. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Now, the Government has withdrawn this exemption by omitting this serial number 9 from the table to the notification. </font></p>
<p align="justify"><a href="http://www.taxindiaonline.com/RC2/notDesc.php?MpoQSrPnM=MTg3Nzg=" target="_blank"><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Notification No. 52/2015-Cus., Dated: November 20, 2015 </font></strong></a></p>
<p align="center"><font size="3" face="Georgia, Times New Roman, Times, serif"><strong><em><font color="#006600">CBDT wants brilliant and dynamic Officers in Systems </font></em></strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>CBDT</strong> wants willing, brilliant and dynamic officers of Assistant Commissioner/Joint Commissioner ranks to work in the following projects: </font></p>
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<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">1. Income Tax Business Applications (ITBA) Project </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">2. Project Insight </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">3. New Tax net Project </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">4. e-delivery of services </font></p>
</blockquote>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Where will they find those brilliant and dynamic officers willing to work with them and that too for absolutely no additional benefit, when they live like little princes in the field. For this kind of jobs, the Government should provide some extra incentive and a huge extra pay. Those poor officers who work in the Board, some Directorates, the Tribunal etc., certainly deserve a huge pay packet. Why can't you make these posts attractive and prestigious? An Additional Commissioner working in Nepal just an hour's flight from Delhi gets a salary of more than 2,50,000 rupees per month. Why can't they give that kind of salaries for those who work in the Boards? Neither the department nor the Pay Commission is prepared to discuss such issues. </font></p>
<p align="justify"><a href="http://www.taxindiaonline.com/RC2/notDesc.php?MpoQSrPnM=MTg3Nzk=" target="_blank"><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif">CBDT F. No. Pr. DGIT(S)/Admn./T&P/B-34/2015-16/13807., Dated: November 20, 2015 </font></strong></a></p>
<p align="center"><font size="3" face="Georgia, Times New Roman, Times, serif"><strong><em><font color="#006600">Allahabad Bench of the CESTAT - High Court still Persistent </font></em></strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>CONTINUATION</strong> of the story from Friday <a href="http://www.taxindiaonline.com/RC2/inside2.php3?filename=bnews_detail.php3&newsid=25277" target="_blank"><strong>DDT</strong></a>. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Pursuant to the order dated 28.10.2015, on 16.11.2015the Registrar of CESTAT is present in person in the Court and has filed an affidavit of compliance. The Registrar has also pointed out that letters dated 19.10.2015 and 3.11.2015 have been written to the Department of Revenue, Ministry of Finance, New Delhi requesting that space measuring 12000 Sq.ft. be made available at 34-A, M.G.Marg, Allahabad from CPWD for setting up a permanent Bench of CESTAT at Allahabad and also the Red building which is within the premises of the Central Excise Department where at present a temporary Tribunal has started functioning from few rooms. The Registrar CESTAT has also informed that appointment of Members is under consideration with the Ministry of Revenue where the matter is pending. The Registrar has also informed that the President CESTAT has directed constitution of Division Bench to hear appeals from 7.12.2015 to 18.12.2015 in the month of December, 2015. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Ministry of Finance was also required to file an affidavit. Sri Ashok Mehta, the senior counsel submitted that an affidavit was received in their office only the previous night and stated that the affidavit was found to be defective and accordingly could not be filed in the Registry. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The High Court observed, "<em>the Ministry of Finance is not doing enough for setting up the permanent establishment of CESTAT. Nothing has been brought on record to indicate what steps they have taken subsequent to our order.</em></font></p>
<p align="justify"><em><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The Commissioner, Central Excise and Customs, Allahabad has filed an affidavit indicating that they had two Guest Houses at Allahabad. In the first Guest House they have five rooms and in the second Guest House, which is in the Red building there are two suites and one intervening room. It has also been stated that funds amounting to Rs.7,97,250/- was sanctioned for renovating the said rooms. The Commissioner has also pointed out that a large number of officials comes to stay there for official purposes and, therefore, the said suites are required for their purposes. </font></em></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><em>We are of the opinion, that since the the Excise Department has two Guest Houses and one of the Guest Houses has 5 rooms, the second Guest House comprising of two suites and one intervening room which is in the Red building in which CESTAT is functioning at the present moment can be given these rooms for effective functioning of CESTAT. </em></font></p>
<p align="justify"><em><font size="2" face="Verdana, Arial, Helvetica, sans-serif">We also find from the affidavit of the Commissioner Central Excise, Allahabad and the statement made by Sri Ashok Mehta on behalf of the Ministry of Finance that the present sitting arrangement of the Tribunal in the Red building at Allahabad is only a temporary measure and is not on a permanent basis and, therefore, this controversy must be set at rest for all times to come. In this regard the Registrar, CESTAT Tribunal, Delhi has conceded that as per the norms a space of 12000 Sq.ft. is required whereas the temporary Red building allows approximately 4000 Sq.ft. Further, Sri Ashok Mehta, the learned senior counsel submitted that the Red building is a heritage building and, therefore, no structural changes can be made without the necessary permission from the competent authorities. </font></em></p>
<p align="justify"><em><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Considering the aforesaid, we are of the opinion, that at the present moment the functioning of the Tribunal at the Red building located inside the Central Excise Department will only function as a temporary arrangement till such time a permanent establishment is <strong>not</strong> made for the Tribunal. It is for the Tribunal to ensure that they locate a permanent place for establishment of a permanent Bench of the Tribunal at Allahabad"</font></em><font size="2" face="Verdana, Arial, Helvetica, sans-serif">. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The High Court gave the following directions. </font></p>
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<blockquote>
<p><font size="2" face="Verdana, Arial, Helvetica, sans-serif">1. The Department of Revenue, Ministry of Finance will take urgent measures on priority basis in coordination with the Ministry of Urban Development with regard to allocation of establishing the Regional Bench of the CESTAT at 34-A M.G. Marg, Allahabad or any other suitable place, which we have already suggested to the Registrar CESTAT in our earlier orders, for places to be located with the help of the District Magistrate, Allahabad. Final orders in this regard are required to be taken on or before the next date since the matter cannot be delayed any further. </font></p>
<p><font size="2" face="Verdana, Arial, Helvetica, sans-serif">2. The Ministry of Finance will further indicate the steps taken for appointment of the Members of the Tribunal. </font></p>
<p><font size="2" face="Verdana, Arial, Helvetica, sans-serif">3. The Department of Revenue Ministry of Finance in coordination with the Chairperson, CBEC, North Block, New Delhi will pass appropriate orders for allocating the entire Red building, which includes the two suites and one intervening drawing room to be given to the Tribunal for its functioning on a temporary basis, so that effective functioning of the Tribunal can be done. Necessary orders should be passed on or before the next date. </font></p>
<p><font size="2" face="Verdana, Arial, Helvetica, sans-serif">4. The Department of Revenue, Ministry of Finance in coordination with the CPWD will get an estimate of the rent of the Red building so that the Department of Central Excise and Customs at Allahabad is adequately compensated and or paid a fair rent and also to offset the renovation cost which the Ministry had sanctioned for renovating the additional guest house. </font></p>
<p><font size="2" face="Verdana, Arial, Helvetica, sans-serif">5. Since the affidavit from the Department of Revenue Ministry of Finance was found to be defective, we direct the Ministry to comply with the aforesaid directions and file an affidavit to that extent on or before the next date. The Under Secretary to the Government of India, Ministry of Finance, Department of Revenue will also be present on the next date. </font></p>
<p><font size="2" face="Verdana, Arial, Helvetica, sans-serif">6. We find that the transfers postings of Members of CESTAT are to be done by the President, CESTAT. We request the President CESTAT to ensure that Single and Division Benches are done and Members are posted at Allahabad and necessary orders to that effect be passed. </font></p>
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<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Positively not the end: The case is to be listed on 16.12.2015 for the next hearing. It requires great perseverance even from a High Court to get things done. </font></p>
<p align="justify"><font color="#FF6666" size="2" face="Verdana, Arial, Helvetica, sans-serif">Until Tomorrow with more <strong>DDT</strong></font></p>
<p align="justify"><font color="#FF6666"><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Have a nice day.</font></strong></font></p>
<p><font color="#FF6666" size="2" face="Verdana, Arial, Helvetica, sans-serif">Mail your comments to </font><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong><a href="mailto:vijaywrite@tiol.in">vijaywrite@tiol.in </a></strong></font></p>
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