Revision by Same Rank Officer -Board is in 'process of taking' appropriate remedial measures
THE appeals against order of the Commissioner and Commissioner (Appeals) are, as is well known, to be filed with the Customs, Excise and Service Tax Appellate Tribunal (CESTAT).
There is a little known appellate channel in indirect tax matters - the Government as Revision Authority.
Under Section 35EE of the Central Excise Act, 1944, in respect of orders passed by Commissioner(A) relating to transit loss, rebate or export without payment of duty, the appeal lies to the Central Government i.e the Revision Authority. Similarly, under Sec 129DD of the Customs Act, 1962, cases involving baggage, drawback and shortages, the appeal lies to the Central Government.
In the case of M/s. NVR Forgings - , the Punjab and Haryana High Court set aside two orders passed by the Revision Authority on the ground that the Commissioner (Appeals) and the Revision Authority were of the same rank.
The High Court observed,
1. the impugned order was passed by the Joint Secretary to Government of India who was also Commissioner of Central Excise and Customs.
2. Thus, the order in appeal as well as revisionary order had been passed by the officers of the same rank which is not permissible as per law.
3. The impugned orders are set aside.
4. However, liberty is granted to the State to proceed afresh in accordance with law but without prejudice to the rights of the parties.
While covering the above decision in , I had suggested -
What can the Government do?
1. The easiest thing perhaps is to appeal to the Supreme Court, which option will keep all the pending cases with the Revision Authority in suspended animation for the next decade or so.
2. They can appoint a Chief Commissioner as the Revision Authority, so that the Revision Authority is higher in rank than the Commissioner (Appeals). But this is not easy -as such they do not have enough Chief Commissioners and which Chief Commissioner will like to work as a Revision Authority?
3. They can do away with the appeals to the Revision Authority? Why should the Government retain certain appellate powers when we have an effective Tribunal? Is it to retain a post or to ensure Revenue favour orders in these matters?
The High Court order came two months ago; the Government has not acted so far - hope they will soon.
The Department took the 'easy' way out -they appealed to the Supreme Court.
However, after condoning the delay, the SLP was dismissed by the Supreme Court on 17.10.2016.
Not ready to give up, the department again referred the matter to the Law Ministry to consider the feasibility of filing a Review Petition. However, the Additional Solicitor General of India opined against this view.
In the meantime, on a similar issue, by an order dated 07.11.2016, the Supreme Court dismissed the Department filed SLP (C) CC No. 2005/2016 in case of M/s. Modi Springs Pvt. Ltd.
The Board, therefore, informs the field formations, the following -
"6. In view of above position, Department is in process of taking appropriate remedial measures, for disposal of the Revision Applications, arising out of the orders passed by the Commissioner (Appeals)."
Taking appropriate remedial measures, we pray, should not mean that the provisions are going to see a minor retrospective amendment in the forthcoming Union Budget.
But, Heads I win, Tails you lose has been the philosophy since times immemorial!
F.No. dated November 16, 2016