Appeals – Committee of Commissioners
What happens if there is a difference of opinion? File appeal – Naturally
Immediately after the Budget, in DDT 66 - 2 3 2005, we asked, And what happens if the two Chief Commissioners have a difference of opinion between them? One says, file the appeal and the other says, NO. Refer to a third Chief Commissioner? But the law is silent on this. And the problem has to be solved within three months. But the Government did not react for more than 11 months. A senior netizen wrote to us that the opinion of the senior member should prevail. There was a provision under the old Arbitration Act, when there are two arbitrators, they had to appoint an umpire and the umpire had to give his decision covering the dissenting opinion. Now after nearly a whole year, Board had clarified the issue. Board’s clarification is a master piece.
1. Board says that it has decided, “When two members take a common view to file an appeal or not to file an appeal, there would be no difference of opinion and the same would be followed.” What a brilliant discovery, decision and conclusion!
2. “In a rare case when two member take different views that is one member takes a view to file an appeal and the other member opposes it the decision should be to file an appeal.” Why should this be a rare case? Does the Board believe that no Commissioner has the guts to take a decision not to file an appeal and it is only in a rare case that such a decision would be taken? And when one member has taken a decision not to file an appeal how can it be held that the decision is to file an appeal?
Is the Board trying to influence the Committee of Commissioners? Is the Commissioner who has taken a decision not to appeal required to pass an order that on going through the order he has come to the conclusion that the order is not proper and legal and so the department must file the appeal, because the Board has directed him to pass such an order?.
The more important legal question is “Is the Board’s circular legally valid?” Section 35B(2) stipulates that the committee of Commissioners if it is of the opinion that an order passed by the Commissioner (Appeals) is not legal and proper, direct and authorise a Central Excise Officer to appeal against the order. So it is very clear from the Section that it is the committee of Commissioners who should form the opinion and not one member of the committee. If the Board wants appeal to be filed anywhere even without the approval of both the members, it should get the law amended and not issue a Circular. Board certainly cannot usurp the powers of the Parliament and amend the Act by a circular.
Incidentally the Board’s numbering system has gone haywire. This Circular is given as No. 824/1/2006-CX., dated 6-2-2006. But Board had already issued another circular with the same No. 824/1/2006-CX., on 16-1-2006. Now which of these two circular is Circular No. 824/2006?
CBEC Circular No. 824/1/2006-CX., dated 6-2-2006