Committee of Dunces
We got this fuming mail from an eminent Netizen, Ramesh Ramachandra
I am sending this response to your story on the single member CESTAT Bench order on the legality of a Committee consisting of a single Commissioner holding additional charge of the alternate Committee member's post. My response is as follows:-
Well, this Tribunal order goes diametrically against the very rationale - and in my view a very flawed rationale - for amending Section 35 providing for a two member Committee for reviewing orders passed by Commissioners. The underlying reason for the amendment was that "two heads are better than one" in such matters and, additionally, that with safety in numbers, Commissioners/Chief Commissioners would "have the courage" to accept pro-assessee orders which were in accordance with the law. This of course was tacit admission that until then Chief Commissioners were taking the easy and safe route of routinely recommending review of all pro-assessee orders passed by Commissioners, regardless of their legality.
Alas, it seems that the objective of the amendment dt. 13/5/2006 has not been realised, and the same position of "erring on the side of revenue" prevails. It seems that an unwritten convention has emerged where the view of the initiating Committee member on whether the order under consideration should be reviewed or otherwise is honoured pro forma by the alternate member. Or, in any case, that there should be no dissent displayed, and all decisions should be unanimous (something like the concept of the 'agreed note' which everyone who has worked in a Ministry of the GOI is familiar with).
This philosophy was blessed by the Board in its astonishingly illegal Circular of 2006 (I don't remember its number or date) {CIRCULAR NO. , Dated 6th February, 2006} which provides that in the event of a disagreement between the two members of the Committee, the decision by default will be to order a review, and damn the legality or otherwise of the adjudication order under consideration. The Circular also substantially undoes and subverts the statutory amendment dt. 13/5/2006 itself. If the referee member of the Committee does not agree with the finding of the referrer member, he knows that in terms of the Circular there will in any case be a review of the order by default. So why go into the rigmarole of recording his dissent and rocking the boat? Better to swim with the tide and put his 'guggi' on the dotted line. So ultimately the review is by a single Commissioner/Chief Commissioner after all.
I am surprised that the Circular of 2006 has not yet been challenged in a higher legal forum. But when that day of judgment arrives, the promiscuous Circular will be struck down, as it deserves to be, and strictures will be passed on the Board as is well deserved in this instance (among several other)
Thank you sir, for your scholarly comments, but the Board Circular had been challenged and struck down (as you predicted) in 2007-TIOL-143-CESTAT-MAD. The Tribunal observed, The Board's circular was issued without legal sanction and militates against Section 35B(2)/129A (2) and cannot be given effect to.