Clogging the High Courts – Revenue has precedence – Law Ministry
We have the CESTAT where the technical member has been a Commissioner or Chief Commissioner in the department and a judicial member who is obviously an accomplished legal brain. When a judgement is passed by a bench consisting of a technical member who was a senior officer of the department and a judicial member who was selected by a committee consisting of a Supreme Court Judge, the decision should be accepted by the department. But the hard reality is that departmental officers have no respect for the Tribunal, rather they have only contempt for the Tribunal.
The other day I told a Commissioner that he should have a little more respect for the Supreme Court of India. Then he asked me, “what would you like your son to be?’
Without waiting for my answer, he went on …
“First of all – a doctor or an engineer; if he fails in that, you would want him to be an IAS/IPS/IRS officer; if he is nowhere near that, you want him to be a Bank officer; if that also fails, you may want him to join a software company; that too failing, you may want him to become an Inspector in Central Excise/ Income Tax; that too failing you will want him to be a clerk in the government; even that failing you may use your good offices to get him a job in a private company. If you fail in that too, you will ask him to study Law. After three years you buy him a black coat and send him to the court. After thirty five years, he is the Chief Justice of India. And you want me to respect this man?”
Though all commissioners are not so articulate, they all share this view.
Unfortunately these Commissioners who have scant respect for the Tribunal and its orders have to depend on the Law Ministry for filing and fighting appeals in the High Courts. The Law Ministry has Branch Secretariats at Kolkotta, Mumbai, Chennai, and Bangalore. These branches for some strange reason, do not understand the greatness of the Commissioners and do not easily agree to appeals against every order of the Tribunal.
The Board has been informed that due to high Handedness and non-cooperative attitude of Branch Secretariat, Kolkata, Commissioners of Central Excise, Kolkata-II and siliguri are finding difficult to file appeals before the High Court against the orders of CESTAT which in their opinion are fit cases to agitate. Similar instances were later brought to the notice by the Commissionerate of Customs, Mumbai and Commissionerate of Central Excise, Thane-II with regard to similar non-responsive attitude of Branch Secretariat, Mumbai.
The Board understood the issue to be a serious one and so took up the matter with the Law Ministry. The Board now informs the field that the Law Ministry has clarified that it is the statutory right of the Department to file appeals before the High Court against the orders of the CESTAT involving questions of law in terms of Section 35G of the Central Excise Act, 1944/Section 130 of the Customs Act, 1962 and that the Branch Secretariat, Ministry of Law & Justice have no right to exercise their dictum over the statutory right of the administrative Department.
What the Law Ministry actually replied was, With respect to your request , it has been decided at the level of Hon'ble Minister for Law & Justice, to agree to the request of Revenue Department that in matters of filing appeal to High Court, Department view may prevail.
Incidentally the reference to the Law Ministry was made by Kailash Sethi, Member. CBEC on 12th April 2006. The Law Ministry replied to Sethi after eight months by which time Mr. Sethi had retired. The Law Ministry took 8 months to clarify the issue! Rama Devi, a former Law Secretary, and a former Governor once told me that the Revenue Department was not prepared to accept her opinion as it was given within five minutes! An opinion given after five months certainly carries more weight than the one given within five minutes.
Okay, Commissioners have the final word on filing appeals in the High Court. But they will still have to engage the Assistant Solicitor General who is paid a princely amount of Rs. 2250 per case. This is one fourth of what the most stupid lawyer in business would charge.
Is there a hidden agenda somewhere? It seems many senior retired officers are ready and waiting to be engaged as high fee advocates in High Courts.
Board’s F.No. SADated : December 15, 2006