TIOL-DDT 310 · the untouched capture
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<strong><font color="#663399" size="3">TIOL-DDT 310</font><br>
24 02 2006<br>
Friday</strong></font></div>
<p align="center"><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Today
is Excise Day</strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">For
a change let me assume I am still a Central Excise employee. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Our
image is certainly not all that good, what with the CVC categorising us among
the most corrupt and a few top officers getting caught by the CBI. We are accused
of being corrupt, lethargic, slow, arrogant, and ignorant and an impediment
to real collection of duty. The huge revenue is believed to be coming not because
of us but as the oft repeated cliché would say, in spite of us. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The
other day I went to a registrar’s office to get back my flat purchased
with a government loan. He did not offer me a seat. Brokers who demand money
openly do most of the work in his office. You go to a Commercial Taxes office;
you are accosted by ignorant and arrogant staff. It is not Government offices
alone which treat you badly. The private sector is not any better. You go to
a school for admission of your child, you are treated worse than a beggar is
and they fleece you to death. Rude behaviour and arrogance coupled with
ignorance is perhaps a national trait associated with any one who thinks he
has a little power. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">In
spite of all the evils associated with us, I can confidently say we are much
better. Visitors to our offices are treated far better than in other offices.
Letters are often actually replied to. It is not really difficult to meet senior
officers of the department right up to the Chairman. Our laws/ notifications/circulars
are actually published (often and if they are not, we in TIOL will bring them
to you) and are available to the trade. Our adjudication and appellate mechanisms
are fairly good and fair.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">It
is said, “if you pay peanuts, you get monkeys” But for less than
peanuts we have one of the best human resources reservoirs in the country. Our
officers at all levels are highly educated and almost every other officer is
a Law graduate. I had a chemical engineering graduate working with me as a UDC.
I had a Sepoy who was a Post graduate and a graduate in Law! I felt ashamed
when I was asked to take the services of a private engineer to ascertain the
annual capacity of a re-rolling mill, when my Inspector was a Post graduate
in Mechanical Engineering from an REC. I feel sad when I was asked to take
the help of a cost accountant when my Inspector was a topper in the ICWAI examination.
I felt humiliated when semi literate computer ‘experts’ swarm our
offices and give us advice on how to run our electronic systems when we have
an army of qualified computer whiz kids. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Maybe
computerization arrived in our department from the wrong end. I remember in
the eighties, first the computer tables arrived and were promptly installed
in the rooms of the senior officers where they were used as dining tables. Then
the Air Conditioning machines arrived. They were promptly installed in the rooms
of the senior officers. AC for the AC was more important than AC for the computers.
Then the computers arrived and there was no place for them. They were kept in
the rooms of the clerks where they still remain. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">We
have everything; we have nothing! We are the best; we are the worst! A department
of contradictions!. Sometime back a Chief Commissioner told me, “You have
done a good thing by leaving this wretched department”. I know it was
officers like him who made the department wretched and took all the benefits
from the department.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Though
the officers are underpaid, we should remember that for each one in the department
there are a hundred others, better qualified and ready to do a better job at
half the salary, out on the roads in search of a job. Your bosses may not
give you good postings, you may not be rewarded for good work, but there is
a poor farmer, a poor worker, a poor nation, which is paying you. We are Servants,
not masters; you have more responsibilities than rights. Once we realize that
we are servants and our job is to serve, nothing else really matters. All the
humiliating experiences, all the injustice, all the infirmities of cadre review
will pale into insignificance when we realize that we are also small cogs in
the great machinery of the Government of India in the job of changing the status
of the small poor unfortunate underfed Indian. There is no humiliation worse
than hunger and this job gives us enough to keep us and our families away from
hunger. That itself is greater than any cadre review posts. Let us try to give
back to this nation a little out of what we have taken from it. </font></p>
<p align="justify"><font color="#0000FF" size="3" face="Verdana, Arial, Helvetica, sans-serif"><strong>a
happy excise day</strong></font></p>
<p align="center"><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Can
a Superintendent of Central Excise ask for information from his Commissioner
under RTI? </strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">
The Commissioner of Central Excise, Mumbai II has passed an interesting order
under the Right To Information Act. A Superintendent, Mr H. J. Mhatre in his
application requested for the following information:- </font></p>
<ol>
<li><font size="2" face="Verdana, Arial, Helvetica, sans-serif" align="justify">Commissioner
Mumbai-II, Car Number used for Pick up and Drop-in from Residence to Office
and vice versa from July 2005 to December 2005.</font></li>
<li><font size="2" face="Verdana, Arial, Helvetica, sans-serif" align="justify">All
Cars’ details of Mumbai-II Commissioner from July 2005 to December 2005
(in use as of till date along with log entries for the said period)</font></li>
<li><font size="2" face="Verdana, Arial, Helvetica, sans-serif" align="justify">Which
Senior Officers (by name and designation) are eligible for use of Cars for
personal purpose like Pick up and Drop-in from residence to office.</font></li>
<li><font size="2" face="Verdana, Arial, Helvetica, sans-serif" align="justify">Which
Office cars are installed with Air Conditioner, Stereo and other additional
accessories and who/how the payment of the same is made and it’s cost
thereof.</font></li>
<li><font size="2" face="Verdana, Arial, Helvetica, sans-serif" align="justify">The
residential address of the Commissioner Mumbai-II from July 2005 to December
2005.</font></li>
<li><font size="2" face="Verdana, Arial, Helvetica, sans-serif" align="justify"> What
is the role of PRO? How many officers are posted in the section and their
duties (By Name) including Superintendent, Inspector, Sepoy, Hamal.</font></li>
<li><font size="2" face="Verdana, Arial, Helvetica, sans-serif" align="justify">Does
the PRO or his subordinate perform outside office duties? If yes, than how
do they commute and details of the Travelling Allowance they have submitted
from July 2005 to December 2005.</font></li>
<li><font size="2" face="Verdana, Arial, Helvetica, sans-serif" align="justify">How
many Mumbai-II officers’ cabins are installed with Air conditioner along
with their designation?</font></li>
<li><font size="2" face="Verdana, Arial, Helvetica, sans-serif" align="justify">Why/How
the PRO office has been installed with Air conditioner along with Television
and Cable connection and under which budget heading the bill has been paid
(the bill details of Cable connection may please be provided from Jul 2005
to December 2005).</font></li>
</ol>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">
The officer was asking for explosive information which cannot be given as it
will be too embarrassing. The Commissioner passed an excellent order denying
the information. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Is
the application entertainable?</strong> The Commissioner asked, “does
the applicant, a Superintendent of Central Excise working in the Commissionerate
of Central Excise, belong to “the governed” or “the governments
and their instrumentalities”? He proceeded to answer it, “by no
means can he be described as a member of “the governed” citizenry. Being
a gazetted officer, he is very much a part of the government. In fact, he is
one of the officers whose name has been published, as required under Sec.4(b)(ix)
of the Act, in the Directory of Officers published in Trade Notice No.21/RTI
Act/2005 dated 24.8.05 issued by the Mumbai-II Central Excise Commissionerate. Instead
of seeking, he should have been supplying the information to “the governed”
citizenry. Thus the only locus standi Sh. Mhatre has under the Act is that
of a provider and not seeker of information.” So the Commissioner held
that the Superintendent had no right to seek information under the RTI Act. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Why
the information cannot be furnished.</strong> The Commissioner observed
that “it may not be out of place to bring on record here that this Commissionerate
of Central Excise generates about Rs.600 crores every month in central excise
revenue; that the officers who collect, compile and communicate information,
requested under the Act, do that job only part time; that their principal
job continues to be collection of central excise revenue and enforcement of
central excise laws; and that any additional work adds to their burden and can
be undertaken by them at some cost to this precious government revenue. Extra
burden coming from their own colleagues cannot be passed on to and borne by
them, particularly when such colleagues are perfectly positioned and capable
of making a little effort to satisfy their curiosity. <strong>This is an abuse
of sacred right to information and cannot, therefore, be permitted”</strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>The
department is to furnish information not explanation.</strong> The Commissioner
held that, “The RTI Act does not empower any applicant to seek explanation,
i.e. reasons or justification for any action or inaction. Nor is the CPIO
bound to furnish the same. The explanations sought for by Shri H. J. Mhatre
in his applications are, therefore, even otherwise not due to him”</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Was
the information sought in Public Interest?</strong> The Commissioner held that
the Superintendent was “so far enjoying the privileges of a gazetted officer.
Now he wants to explore and exploit the right to information, which the citizenry
has acquired after a long struggle. He wants to have the best of both the
worlds. <strong>No, that is not public interest. That is a crass personal
interest,</strong> which can’t be allowed to take precedence over the
public interest.”</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Finally
the Commissioner gave a wonderful quotable quote in his order, “The RTI
Act has opened a way to a newly discovered territory, where the ordinary citizens
of India have been armed with a precious right to hold all Government functionaries
accountable. It can’t be encroached by anyone else. It is off-limits
to any one who is not a “citizen.” <strong>The RTI route is
closed to joy riders”</strong> </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The
Commissioner’s order is simply superb for its language, but for the law?
He does not want to confer the rights of a citizen on his staff. What would
have been the position if the information had been asked for by the wife of
the Superintendent? She is not a government employee; she is not a gazetted
officer; her interest cannot be classified as crass personal one. In any case
a citizen asking for information is not required to tell the Commissioner why
he/she wants the information. What was the crass personal interest in asking
for information about the office vehicles? Obviously the applicant was trying
to prove a point – about an open secret in the department. <br>
<br>
<b>It is universally accepted that:-</b></font></p>
<blockquote>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">1. Cars
meant for preventive work are used for personal transport.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">2. Many
of the officers who are not eligible for pick up and drop from and to residence
do use government vehicles for the purpose and coolly claim the transport
allowance from the department without batting an eyelid. Even the very honest
officers avail this facility.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">3. Officers
are not eligible to have AC for their cars but many government cars have unauthorized
ACs fitted.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">4. Many
of the Commissioners do not have residential addresses and they stay in departmental
guest houses.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">5. There
are many cabins fitted with ACs and TVs for which there is no official provision.
</font></p>
</blockquote>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">
These uncomfortable questions were asked by the applicant and answers were refused
because he is not a citizen. But citizens do have a right to get the information.
Because the applicant was a departmental officer, the information was denied,
but what will the department do if the same information is asked by somebody
else? </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">The
senior officers of the department richly deserve all these facilities, but as
of now they are not legal. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">See
full text of the ORDER No.01/2006-(RTI) of Mumbai II Commissioner dated 19.1.2006
under RTI Counter in <strong><a href="http://www.hrindiaonline.com">www.hrindiaonline.com</a></strong></font></p>
<P align=center><B><IMG height=62 src="http://www.taxindiaonline.com/RC2/image/ddt/gnl_txt.jpg" width=375></B></P>
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<TR>
<TD><IMG height=67 hspace=5 src="http://www.taxindiaonline.com/RC2/image/ddt/gnl_word.jpg" width=67 align=absMiddle vspace=5><B><I> <font size="2" face="Verdana, Arial, Helvetica, sans-serif">lex
non cogit ad impossibilia</font></I></B></TD>
</TR>
</TBODY>
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<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">-
Law does not compel to do the impossible.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">This
phrase is used in the Supreme Court judgement we are carrying today. </font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">“There
can be no doubt that a man may by an absolute contract bind himself to perform
which subsequently however becomes impossible, or to pay damages for the non-performance
and this interpretation is to be placed upon an unqualified undertaking, where
the event which causes the impossibility was or might have been anticipated
and guarded against in the contract, or where the impossibility arises from
the act or default of the promissor. But where the event is of such a character
that it cannot reasonably be supposed to have been in the contemplation of the
contracting parties when the contract was made, they will not be held bound
by general words which, though large enough to include, were not used with reference
to the possibility of the particular contingency which afterwards happened.
It is on this principle that the act of God is in some cases said to excuse
the breach of a contract. Though impossibility of performance is in general
no excuse for not performing an obligation which a party has expressly undertaken
by contract, yet when the obligation is one implied by law, impossibility of
performance is a good excuse.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><strong>Industrial
Finance Corporation of India Ltd., Vs. Cannanore Spinning and Weaving Mills
Ltd.and others, AIR 2002 SCOURT 1841</strong></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">
<strong>Lex non cogit ad impossibilia.</strong> The law does not compel to impossible
ends. <br>
<strong>Lex non intendi aliquid impossibile. </strong>The law does not intend
anything impossible. <br>
<strong>Lex neminem cogit ad vana seu inutilia peragenda.</strong> The law forces
no one to do vain or useless things.</font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><br>
Maxim <strong>-lex non cogit ad impossibilia-</strong> Law cannot compel a person
to do impossible - Unforeseen circumstance beyond control of assessee resulting
in non-payment of duty would not mean that there was failure to pay the duty
by due date – Bombay High Court in INDIAN SEAMLESS STEEL AND ALLOYS LTD.
V UOI. </font></p>
<p align="justify"><font color="#993300" size="2" face="Verdana, Arial, Helvetica, sans-serif">
<strong>If the laws could speak for themselves they would complain of the lawyers
in the first place.</strong></font></p>
<p align="right"><font size="2" face="Verdana, Arial, Helvetica, sans-serif"><i>(Lord
Halifax (1633-1695) Political Thoughts and Reflections)</i></font></p>
<p align="justify"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">
<font color="#FF6666"><strong>Until Monday with more DDT</strong></font></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 align="justify"><font color="#FF6666"><strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Mail
your comments to</font></strong><font size="2" face="Verdana, Arial, Helvetica, sans-serif"></font></font><font size="2" face="Verdana, Arial, Helvetica, sans-serif">
<a href="mailto:vijaywrite@taxindiaonline.com">vijaywrite@taxindiaonline.com</a></font></p>
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